BVA9504706 DOCKET NO. 93-10 925 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from October 1946 to March 1948, from October 1950 to November 1951 and from April 9 to April 13, 1986. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1992 rating decision of the Los Angeles, California, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which in part, granted service connection for internal derangement of the left knee with atrophy, and assigned a 10 percent disability evaluation therewith. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 10 percent for a left knee disability. He argues that he currently suffers from pain, instability and weakness in his left knee, which is aggravated upon walking long distances or climbing a ladder or stairs. 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 appellant'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 allowance of the appellant's claim for entitlement to an evaluation in excess of 10 percent for a left knee disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant's left knee disability is currently manifested by subjective complaints of pain, instability and weakness in the left knee, which is aggravated by long walks or runs, and climbing stairs. 3. Objective clinical evidence of record indicates mild instability and atrophy of the left knee, with no evidence of crepitation, clicking, grinding, swelling, locking or subluxations. Objective range of motion studies indicated no more than slight limitation of motion of that knee. 4. More than slight impairment has not been shown with respect to the appellant's service-connected left knee disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate II, Diagnostic Codes (DC) 5257, 5258, 5259, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to his claim. 38 U.S.C.A. §5107(a) (West 1991). The evidentiary record contains relevant service medical records as well as a November and December 1991 VA general medical and orthopedic examinations which adequately detail the history of the appellant's in-service left knee injury, subsequent surgery and continued treatment. Although the appellant asserts that the orthopedic examination was "too quick," the examiner described all relevant findings necessary for evaluating the knee disability, and the examination was sufficiently thorough for the purposes of this appellate review. Therefore, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant, as the medical reports of record provide a complete history of such disability, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). Separate diagnostic codes identify the various disabilities. However, rating the same disability under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (1994). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1994). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Where there is recurrent subluxation, lateral instability or other impairment of a knee, a ten percent evaluation may be assigned where the disability is slight; 20 percent for moderate disability; and 30 percent for severe. 38 C.F.R. Part 4, DC 5257 (1994). Alternately, a 10 percent evaluation is assigned for symptomatic removal of the semilunar cartilage, 38 C.F.R. Part 4, DC 5259 (1994), and a 20 percent evaluation may be assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint, 38 C.F.R. Part 4, DC 5258 (1994). Evaluations for limitation of flexion of the leg and knee are assigned as follows: flexion limited to 60 degrees is zero percent; flexion limited to 45 degrees is ten percent; flexion limited to 30 degrees is 20 percent; and flexion limited 15 degrees is 30 percent. 38 C.F.R. Part 4, DC 5260 (1994). Evaluations for limitation of extension of the knee are assigned as follows: extension limited to five degrees is zero percent; extension limited to ten degrees is ten percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. Part 4, DC 5261 (1994). Normal range of motion for the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (1994). Service medical records indicate the appellant injured his left knee in April 1986, resulting in June 1987 arthroscopic surgery with a partial medial meniscectomy. Subsequent military medical records indicated the appellant healed well, with only minimal tenderness and effusion of that knee. In September 1991, the appellant filed an application for disability compensation requesting service connection for a current left knee disability. During a November 1991 general medical VA examination, the appellant reported subjective complaints of light to moderate intermittent pain in his left knee, which was aggravated by stair or ladder climbing, or walking or running long distances. Upon examination, the examiner indicated good range of motion of all joints, with questionable instability of the left knee and mild atrophy in the left thigh. Accompanying x-ray indicated a spur at the superior margin of the patella, but with an adequately maintained joint space and no other abnormalities. Subsequently, the appellant was evaluated during a December 1991 VA orthopedic examination. At that time, he reported a history of a 1986 left knee injury, resulting in arthroscopic surgery and a partial medial meniscectomy. He further reported current subjective complaints of intermittent pain, instability and weakness in his left knee, which was aggravated by climbing a ladder and long walks. Upon examination, the orthopedic examiner indicated mild instability and atrophy in the left knee. Objective range of motion studies of that knee revealed 5 degrees extension and 135 degrees flexion, with no demonstrable evidence of crepitation, clicking, grinding, effusion, or any other abnormalities. The examiner concluded with an impression of post-operative internal derangement of the left knee. Taking into account the entire evidentiary record, there is simply no objective clinical evidence to support an evaluation in excess of 10 percent for the appellant's left knee disability. The recent clinical evidence clearly demonstrated mild instability and atrophy of the left knee, with only more minimal limitation of motion associated therewith. Furthermore, there is no objective clinical evidence of recurrent subluxation, dislocated cartilage, frequent locking or effusion of that knee. Thus, there is no basis upon which to grant an increased evaluation under DC's 5257, 5258, 5259, 5260 or 5261. The appellant's current symptomatology more nearly approximates the criteria indicative of a 10 percent evaluation, and therefore, that evaluation is continued. 38 C.F.R. § 4.7 (1994). Moreover, there is no evidence of record of marked interference with employment or frequent hospitalizations attributable to the appellant's left knee disability. On his examination in 1991, he reported that he was not working due to the closure of his employer's plant and that he had lost only 12 hours' work in the past 12 months due to his knee disability. This does not indicate marked interference with employment. Furthermore, the Board has considered the appellant's statements that he has difficulty walking long distances or jogging, as well as climbing stairs and a ladder; however, we do not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1994). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 10 percent for a left knee disability is denied. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.