BVA9504216 DOCKET NO. 92-05 716 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to a disability evaluation greater than 20 percent for a left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Mark D. Chestnutt, Associate Counsel INTRODUCTION The veteran served on active duty from April 1980 to December 1985. This appeal stems from a February 1991 rating decision of the San Francisco, California, Regional Office (RO) that denied a disability evaluation greater than 10 percent for a left knee disability. By rating decision in October 1991, the RO increased the disability evaluation to 20 percent. The Board of Veterans' Appeals (Board), by decision in October 1992, remanded the case for evidentiary and procedural development. The requested development has been completed and the case is now ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that her service-connected left knee disability is more disabling than recognized by the evaluation currently in effect. She maintains that she has instability and pain on motion and has to wear a knee brace. 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 evidence supports granting an increased disability evaluation of 30 percent for the veteran's left knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. The veteran's left knee disability, despite numerous surgical procedures, remains manifested by complaints of pain, recurrent instability, a possible medial meniscus tear, and a need to wear a brace with activity. CONCLUSION OF LAW The schedular criteria for a disability evaluation of 30 percent for a left knee disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, Part 4, Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed. The veteran was provided the opportunity to testify in support of her claim at a June 1991 personal hearing held at the RO. Also, the Board has remanded the case and additional evidence has been obtained. Under these circumstances the Board finds that there is no further duty to assist the veteran in order to comply with the duty to assist her as mandated by 38 U.S.C.A. § 5107. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the service medical records and all other evidence of record pertaining to the history of the disability in question have been reviewed. Nothing in the historical record suggests that the current evidence of record is not adequate for rating purposes. Moreover, this case presents no evidentiary considerations which would warrant an exposistion of the remote clinical histories and findings pertaining to this disabiity. Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. The veteran's left knee is currently evaluated as 20 percent disabling under Diagnostic Code 5257. This evaluation contemplates moderate impairment of the knee. In order to be entitled to an evaluation greater than 20 percent, the veteran must demonstrate severe impairment of the knee. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Applying these laws and regulations to the particular facts of this case, an increased rating is warranted. A review of the service medical records reveals that the veteran injured her left knee playing softball in 1983. Since that time she has had many operations, both during and post service, to improve the stability of the knee and to reduce the pain. By rating decision in June 1987, service connection was established for a status-post patellar tendon realignment--left knee; and a disability evaluation of noncompensable was assigned. This disability evaluation was subsequently increased to 20 percent by a hearing officer in September 1991. The veteran gave testimony in support of her claim at a June 1991 personal hearing held at the RO. At this hearing she testified that, because of her left knee problems, she had to be careful during "normal walking." She believed that pivoting or an excess speed of walking could be very hazardous for her, and she recounted a recent tear in her meniscus caused by walking too quickly. She testified as to her need to wear a brace on her left knee, or to have the knee wrapped with a bandage. Her testimony also included discussing some of the surgery that her knee had undergone, as well as the difficulties she had moving around as required by her employment. At the time of a VA examination in January 1993, the veteran reported that she was employed as an electronics technician, which she performed in a sitting position. The veteran underwent reconstruction of the left anterior cruciate ligament at Good Samaritan Hospital of Santa Clara Valley in May 1993. Adhesions and scar tissue were removed in a surgical procedure performed at that facility in January 1994. The veteran was examined by the VA in April 1994, and a brief synopsis of her multiple surgeries was reported. At this examination, she complained of persistent instability of her left knee with any activity, such as riding a bicycle or playing golf. On physical examination, multiple surgical scars were evident. There was no effusion, patella instability or patella crepitus. She demonstrated a range of motion of the left knee of 5 to 120 degrees. The circumference of the right quadriceps muscle was 16", as compared to 15½" on the left. Also, the right calf measured 15", while the left calf was 14½". There was a trace of Lachman on the left side and there was a markedly positive pivot- shift test in the left knee. X-rays revealed no arthritis and evidence of anterior cruciate ligament (ACL) reconstruction. The impression was ACL deficient left knee, post-ACL reconstruction. The physician found that the ACL reconstruction was in doubtful condition and that there was a persistent rotary instability of the left knee requiring the use of a brace. He also noted the possibility of a degenerative tear of the anterior horn of the medial meniscus with localized tenderness. The April 1994 VA examination indicates that the veteran continues to experience rotary instability of the left knee despite numerous surgeries. Given the VA examiner's report of persistent instability of the knee, the doubtful ACL reconstruction, the possible medial meniscus tear and the veteran's need to wear a brace, the Board finds, after considering all the evidence of record, that the veteran's symptoms more nearly approximate the criteria required for a 30 percent disability evaluation. 38 C.F.R. § 4.7. Accordingly, the benefits sought on appeal are granted. Ankylosis or limitation of extension to 30 degrees, the criteria for a 40 percent evaluation, have not been demonstrated. 38 C.F.R. § Part 4, Codes 5256, 5261 (1993). In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original injury has been reviewed and the functional impairment that can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40. Furthermore, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the veteran's left knee disability has caused marked interference with employability or necessitated frequent periods of hospitalization beyond that contemplated by the 30 percent disability evaluation. 38 C.F.R. § 3.321(b)(1) (1993). With respect to this determination, where the evidence was so evenly balanced so as to raise doubt as to any material issue, such doubt was resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER Entitlement to a disability evaluation of 30 percent for a left knee disability is granted subject to the regulations applicable to the payment of monetary benefits. WAYNE M. BRAEUER 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.