BVA9503787 DOCKET NO. 93-09 412 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 20 percent evaluation for unstable medial collateral ligament, status post right meniscectomy, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from January 1951 to February 1971. This appeal arose from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO reduced the evaluation for the disability of the right knee from 20 percent to 10 percent disabling. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO improperly reduced the evaluation for his right knee disability. He states that over the years his right knee disability has worsened as shown on previous examinations including x-ray studies. He denies that he performed heel and toe tests as was reported when he was examined by VA in July 1991. He states that he experiences difficulty in performing the squat procedure because his left leg supports the majority of his weight. The appellant avers that due to a shortening of his right leg, he has a limp. 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 record supports restoration of a 20 percent evaluation for unstable medial collateral ligament, status post right meniscectomy FINDINGS OF FACT 1. There has been no evidence of material improvement in the disabling manifestations of the disability of the right knee which can reasonably be expected to be maintained under the ordinary conditions of life. 2. Disability of the right knee continues to be productive of not more than moderate impairment. CONCLUSION OF LAW The requirements for restoration of a 20 percent evaluation for unstable medial collateral ligament, status post meniscectomy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.344(a)(c), 4.7, 4.40, 4.71(a), Diagnostic Codes 5010-5257 (1994). 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(a), in that it is at least plausible that his right knee disability has not improved and did not warrant a reduction in compensation benefits. More specifically, the Board observes that the veteran's claim is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's right knee disability. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. The service medical records show that the appellant underwent a right knee meniscectomy in 1955. The April 1971 VA medical examination report shows there was a 3 1/4 inch well-healed, non-tender, surgical scar on the medial side of the right knee. There was no redness, swelling, or abnormal mobility of the knee. The examiner noted that the veteran did a full knee bend. A radiographic study of the right knee was interpreted as showing some arthritic changes, especially remarkable in the area of the medial condyle. The examiner diagnosed post-operative residual of medial meniscectomy of the right knee. In May 1971, the RO granted entitlement to service connection for a right knee scar, postoperative meniscectomy, and a noncompensable evaluation was assigned. At a May 1972 VA examination, the veteran reported having injured his right knee in service. Surgery on the right knee relieved him of any pain. The joint had remained painless and stable. On examination was seen a 4 inch medial arthrotomy scar. The range of motion of the right knee was described as normal. The examiner diagnosed postoperative medial meniscectomy on the right with no residuals. A November 1972 VA examination concluded in a relevant diagnosis of postoperative right medial meniscectomy with mild rotary instability, but essentially minimal symptoms. A December 1976 VA examination disclosed weakness of the right medial collateral ligament. The relevant diagnostic impression was unstable medial collateral ligament on the right. The RO granted an increased (compensable) evaluation of 10 percent for disability of the right knee when it issued a rating decision in March 1977. At a January 1987 VA examination, the appellant complained of right knee pain. He stated that sometimes it felt like it was going to give way. Range of motion was 0 degrees to 120 degrees. There was 2+ medial collateral and 1+ anterior cruciate instability. X-rays were noted to show moderate degenerative disease in the medial compartment with spur formation. There were also degenerative changes over the superior and inferior aspect of the patella. The examination diagnosis was degenerative arthritis of the right knee. The RO granted entitlement to an increased evaluation of 20 percent for disability of the right knee when it issued a rating decision in January 1987. VA conducted a special orthopedic examination of the veteran in July 1991. He complained of chronic right knee pain which varied in severity. Chronic swelling was also noted. Prolonged standing, walking, squatting, or stooping, or going up and down stairs was said to be painful. The appellant described a feeling of instability of the knee, particularly when going downhill or down steps. On examination the range of motion of the right knee was found to be 0 degrees to 140 degrees. There was a well-healed, surgical scar on the medial aspect of the right knee. No redness or heat was noted. There was perhaps minimal effusion in the knee. There was tenderness to palpation over the medial aspect of the knee. There appeared to be slight opening on the medial aspect of the knee with valgus stress. The veteran was noted to have performed a satisfactory heel and toe walk. He was able to slowly perform a full squat and arise again while bearing most of the weight on the left leg. The right quadriceps was 1 centimeter smaller than the left quadriceps. Reflexes and sensation were intact. An x-ray of the right knee disclosed mild degenerative changes and minimal eburnation of the articular surfaces of the medial joint compartment. The examination diagnosis was traumatic arthritis of the right knee with history of old injury, postoperative open meniscectomy. At an August 1992 VA orthopedic examination, the veteran complained of chronic pain with intermittent swelling of the right knee. Prolonged standing or walking as well as squatting and stooping or going up and down steps were said to aggravate the knee. The veteran stated that he had a feeling of giving way in the knee. On examination the veteran was observed to walk with a satisfactory gait pattern. The right knee had a well-healed surgical scar medially. He had 0 degrees to 140 degrees range of motion with slight crepitus. There was rather significant tenderness to palpation over the area of the anteromedial joint line and proximal tibial region. The examiner noted that he was unable to demonstrate any definite instability, but it should be noted that the veteran was demonstrating rather marked guarding secondary to complaints of pain. He could perform a heel and toe walk and was able to squat and arise again. Reflexes and sensation were intact in the lower extremities. The examination diagnosis was postoperative medial meniscectomy of the right knee with degenerative changes. The RO reduced the evaluation for the appellant's disability of the right knee without applying the criteria under 38 C.F.R. § 3.344(a). These criteria essentially require that examinations less full and complete than those on which compensation payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement... will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The provisions discussed above apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In the veteran's case, the Board fails to see where any improvement in the appellant's right knee disability has occurred. On the contrary, the Board's evaluation of the evidence of record does not permit the conclusion that the claimant's right knee disability has significantly improved and that such improvement can reasonably be expected to be maintained under the ordinary conditions of life. The July 1991 and August 1992 VA examination reports were consistent in showing that the veteran continues to experience longstanding right knee symptomatology and that clinical findings have essentially remained unchanged from findings reported during earlier post service years. The Board is of the opinion that the previous evaluation of 20 percent should be restored. It is well to consider whether restoration of the previous 20 percent evaluation suffices on the basis of the medical evidence of record. In this regard the Board observes that restoration of the twenty percent evaluation should be predicated on the basis of not only the criteria under 38 C.F.R. § 3.344(a)(c), but under diagnostic code 5257 for moderate recurrent subluxation or lateral instability. The next higher evaluation of 30 percent requires severe impairment which has not been shown by the evidence of record. Under diagnostic code 5260, a 30 percent evaluation may be assigned for limitation of leg flexion to 15 degrees. Under diagnostic code 5261, a 30 percent evaluation may be assigned for limitation of leg extension to 20 degrees. As these required limitations of motion are not shown, a higher evaluation under either of these codes is not warranted. No question has been presented as to which of two or more evaluations would more properly classify the severity of the right knee disability. 38 C.F.R. § 4.7. The right knee disability includes the veteran's complaints of symptomatic pain which are considered in his 20 percent restored evaluation, thereby precluding a grant of an increased evaluation for functionally disabling pain under the criteria of 38 C.F.R. § 4.40. The appellant's right knee disability has not rendered his medical picture unusual or exceptional in nature, and has not markedly interfered with employment. It has not required frequent periods of inpatient care as to render impractical the application of regular schedular standards, thereby precluding the assignment of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board concludes that the evidentiary record supports restoration of the prior 20 percent evaluation for unstable medial collateral ligament, status post right meniscectomy. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 3.344(a)(c), 4.7, 4.40, 4.71(a), Diagnostic Codes 5010-5257. ORDER Restoration of a 20 percent evaluation for unstable medial collateral ligament, status post right meniscectomy, is granted, subject to pertinent criteria applicable to the payment of monetary benefits. 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.