BVA9507148 DOCKET NO. 93-15 294 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased evaluation for a right knee disorder, currently rated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for a left knee disorder. 3. Entitlement to an increased (compensable) evaluation for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from February 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 1992 by the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO). In his January 1994 informal hearing presentation, the veteran's representative raised the issues of entitlement to service connection for bilateral foot disorders, secondary to service- connected bilateral knee disorders. These issues have not been developed or certified for appellate consideration and are therefore referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that increased evaluations for his service-connected bilateral knee and low back disorders are warranted as the currently assigned ratings do not accurately reflect the severity of these disorders. Therefore, he requests favorable determinations by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim of entitlement to an increased evaluation for a right knee disorder. It is further the decision of the Board that the evidence supports the assignment of 10 percent evaluations for the veteran's left knee and low back disorders, respectively. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The current manifestations of the veteran's right knee disorder include tenderness and complaints of pain. 3. The veteran's right knee disorder is productive of no more than slight functional impairment. 4. The current manifestations of the veteran's left knee disorder include tenderness and complaints of pain. 5. The veteran's left knee disorder is productive of slight functional impairment. 6. The current manifestations of the veteran's low back disorder include sacralization and complaints of pain. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right knee disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5257 (1994). 2. The criteria for an evaluation of 10 percent for a left knee disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5257 (1994). 3. The criteria for an evaluation of 10 percent for a low back disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an Increased Evaluation for a Right Knee Disorder The service medical records indicate that the veteran complained of bilateral knee pain in March 1991. Upon examination, no swelling, effusion, or discoloration in the areas of tenderness was found. In addition, the veteran was able to execute a full squat but he did experience some difficulty on recovery. The veteran continued to experience bilateral knee pain and was placed on a physical profile in August 1991 which indicated that he should not run or jump. In December 1991, no laxity, effusion, or heat of the veteran's knees was discovered. Some retropatellar tenderness, however, was noted. A January 1992 Physical Evaluation Board (PEB) report shows that the veteran had been diagnosed with bilateral retropatellar pain syndrome that was manifested by pain on motion and an inability to do physical training. The PEB also determined that the veteran was physically unfit for further military service. Numerous Individual Sick Slips reveal that the veteran received physical therapy for his legs on several occasions in 1991. The report of an April 1992 VA examination indicates that no swelling, crepitation, limitation of motion, effusion, instability, or laxity of the veteran's right knee was discovered. Nevertheless, tenderness above the patellar area medially and laterally was found and the McMurray's sign was positive laterally. X-rays of the right knee were within normal limits. A diagnosis of retropatellar pain syndrome was recorded. By decision in June 1992, the RO granted service connection for a right knee disorder and assigned this disability a 10 percent evaluation. During his November 1992 personal hearing, the veteran testified that he experienced a "pop" in his knees when he squatted or stood up. In addition, the veteran stated that he experienced constant pain in the back of his knees which radiated to his ankles. The veteran further indicated that his knees sometimes gave way and that he was taking Tylenol for his knee pain. As previously mentioned, the RO assigned the veteran's right knee disorder a 10 percent evaluation pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257. Such an evaluation contemplates the manifestation of slight knee impairment. The next higher evaluation, a 20 percent rating, requires moderate knee impairment. Upon review of the entire record, the Board concludes that the current 10 percent evaluation most nearly approximates the veteran's disability picture. In this regard, the Board notes that although tenderness above the patellar area and a positive McMurray's sign were indicated during the most recent April 1992 VA examination, no swelling, crepitation, limitation of motion, effusion, instability, or laxity was discovered. Therefore, the preponderance of the evidence is against a schedular rating in excess of 10 percent based upon the limited severity of the veteran's symptoms and knee impairment. II. Entitlement to an Increased Evaluation for a Left Knee Disorder The service medical records addressing the veteran's knee disorders have previously been reported in this decision. The report of an April 1992 VA examination indicates that there was tenderness above the patellar area of the veteran's left knee medially and laterally. In addition, no laxity, instability, or limitation of motion of the left knee was found. The veteran did, however, complain of pain on extension and flexion. X-rays were within normal limits. A diagnosis of retropatellar pain syndrome with positive drawer sign on the left was recorded. By decision in June 1992, the RO granted service connection for a left knee disorder and assigned this disability a noncompensable evaluation. The testimony that was provided by the veteran during his November 1992 personal hearing has previously been reported in this decision. A noncompensable evaluation has been assigned to the veteran's left knee disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5257. A compensable evaluation of 10 percent contemplates the manifestation of slight knee impairment. Based upon a thorough review of the evidence of record, the Board finds that a 10 percent disability evaluation most nearly approximates the veteran's current disability picture. In this regard, the Board notes that tenderness and a positive drawer sign were revealed during the April 1992 VA examination. In addition, the veteran reported experiencing pain upon flexion and extension of his knee. The preponderance of the evidence, however, is against a schedular rating in excess of 10 percent based upon the limited severity of the veteran's symptoms and knee impairment. III. Entitlement to an Increased Evaluation for a Low Back Disorder The service medical records indicate that the veteran complained of lumbar pain in April 1991. Upon examination, the veteran had full range of lumbar spine motion with no paravertebral spasm or reflex spasm to percussion. Backward bending increased his pain at the apex of the lumbar lordosis. An assessment of mechanical low back pain secondary to poor posture and weak abdominals was recorded. A subsequent examination did not reveal any pain with percussion of the spine or with axial compression or rotation. Flexion, extension, and lateral bending were 80, 15, and 30 degrees, respectively. The veteran had a negative nerve root tension sign and his tendon reflexes were 2+ and symmetrical. A January 1992 PEB report shows that the veteran had been diagnosed with lumbar degenerative disk disease that was manifested by pain on activity. The PEB also determined that the veteran was physically unfit for further military service. Numerous Individual Sick Slips reveal that the veteran received physical therapy for his back on several occasions in 1991. The report of an April 1992 VA examination indicates that there was no deformity of the veteran's spine or flattening of the curvature. In addition, no muscle spasm was noted. Forward flexion, backward extension, lateral flexion, and rotation were 95, 35, 40, and 35 degrees, respectively. The veteran was able to lie down on the examining table without difficulty and straight leg raising was 120 degrees bilaterally with no low back pain. X-rays were within normal limits except for sacralization. A diagnosis of chronic low back pain with no limitation of motion was recorded. By decision in June 1992, the RO granted service connection for a low back disorder and assigned this disability a noncompensable evaluation. During his November 1992 personal hearing, the veteran testified that he experienced radiating pain from his low back to his buttocks and that this pain prevented him from sitting for extended periods of time. In addition, the veteran noted that if he flexed too far forward, he needed help in order to return to an upright position. A noncompensable evaluation has been assigned to the veteran's low back disorder pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295. Such an evaluation contemplates the manifestation of slight subjective symptoms. A compensable evaluation of 10 percent requires the manifestation of characteristic pain on motion. After a complete review of the evidence associated with the claims file, the Board concludes that a question exists as to whether a noncompensable or a 10 percent evaluation should be assigned to the veteran's low back disorder. In this regard, the Board notes that although no objective evidence of a back disorder, other than sacralization, was found during the April 1992 VA examination, the veteran testified during his November 1992 personal hearing that he consistently experienced back pain that radiated to his buttocks. Since pain is an important disability factor that must be considered in the rating of a claimant's disabilities, See 38 C.F.R. §§ 4.40, 4.59 (1994); Voyles v. Brown, 5 Vet.App. 451, 453 (1993), the Board finds that a reasonable doubt has arisen regarding the degree of the veteran's low back disorder. Resolving all doubt in favor of the veteran, the Board finds that a 10 percent disability evaluation is warranted. See 38 C.F.R. §§ 4.3, 4.7. The preponderance of the evidence, however, is against a schedular rating in excess of 10 percent based upon the limited severity of the veteran's symptoms and low back impairment. IV. In reaching its decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.4. Further, the Board finds in this case that the disability pictures are not so exceptional or unusual so as to warrant evaluations in excess of 10 percent on an extra-schedular basis. It has not been shown that the veteran's bilateral knee and low back disorders have caused marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). ORDER An increased evaluation for a right knee disorder is denied. Subject to the laws and regulations governing the award of monetary benefits, a 10 percent disability evaluation for a left knee disorder is granted. Subject to the laws and regulations governing the award of monetary benefits, a 10 percent disability evaluation for a low back disorder is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.