Citation Nr: 0005263 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-43 361 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to assignment of a higher (compensable) evaluation for chondromalacia of the left knee. 2. Entitlement to assignment of a higher (compensable) evaluation for retropatellar syndrome of the right knee. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from February 1974 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision. The case now returns to the Board following completion of development made pursuant to its December 1998 remand. The Board notes that the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter the Court), in Fenderson v. West, 12 Vet. App. 119 (1999) held, in part, that the RO never issued a statement of the case concerning an appeal from the initial assignment of a disability evaluation, as the RO had characterized the issue in the statement of the case as one of entitlement to an increased evaluation. Fenderson involved a situation in which the Board had concluded that the appeal as to that issue was not properly before it, on the basis that a substantive appeal had not been filed. This case differs from Fenderson in that the appellant did file a timely substantive appeal concerning the initial rating to be assigned for the disability at issue. The Board observes that the Court, in Fenderson, did not specify a formulation of the issue that would be satisfactory, but only distinguished the situation of filing a notice of disagreement following the grant of service connection and the initial assignment of a disability evaluation from that of filing a notice of disagreement from the denial of a claim for increase. Moreover, the appellant in this case has clearly indicated that what he seeks is the assignment of a higher disability evaluation. Consequently, the Board sees no prejudice to the veteran in either the RO's characterization of the issue or in the Board's characterization of the issue as one of entitlement to the assignment of a higher disability evaluation. See Bernard v. Brown, 4 Vet. App. 384 (1883). Therefore, the Board will not remand this matter solely for a re-characterization of the issue in a new statement of the case. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran's chondromalacia of the left knee is currently manifested by complaints of pain and stiffness in the knee, exacerbated by standing for 15 to 20 minutes, and slight objective evidence of pain on motion that was limited to 134 degrees of flexion. 3. The veteran's retropatellar syndrome is manifested by complaints of pain and stiffness in the right knee, exacerbated by standing for 15 to 20 minutes, with objective evidence of pain on extremes of motion that was limited to 130 degrees of flexion. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, and no higher, for chondromalacia of the left knee have been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate II, 4.71a, Codes 5257, 5260, 5261 (1999). 2. The criteria for an evaluation of 10 percent, and no higher, for retropatellar syndrome of the right knee have been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate II, 4.71a, Codes 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, I note that the veteran has presented a well- grounded claim with respect to an increased rating for the service-connected left and right knee disabilities. That is, he has presented a claim that is plausible. Cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). I am also satisfied that all appropriate development has been accomplished and that VA has no further duty to assist the veteran. All relevant facts have been properly developed. The recent examinations provide sufficient information to rate the disabilities in accordance with the applicable rating code. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10. 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 for the higher rating. 38 C.F.R. § 4.7. In considering the severity of a disability it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2. In this case, service connection was established for chondromalacia of the left knee and retropatellar syndrome of the right knee in a January 1994 rating decision. Noncompensable ratings were assigned to these disabilities. These are the veteran's current ratings. The veteran contends that he has arthritis and limitation of motion in the left knee. He also complains of stiffness, limitation motion of some degree of industrial impairment as a result of disability. A consequence, he contends that he is entitled to a compensable rating for each of the knee disabilities. Left knee. In this case, the most recent VA examinations show that the veteran has limitation of flexion to 134 degrees. The veteran has not demonstrated the flexion limited to 45 degrees required for a 10 percent evaluation. 38 C.F.R. § 4.71, Code 5260. The veteran's extension was within normal limits as indicated by the recorded finding of zero degrees. 38 C.F.R. § 4.71, Plate II. A compensable rating requires extension limited to 10 degrees. 38 C.F.R. § 4.71a., Code 5261. Likewise, the most recent VA examination failed to show that the presence of lateral instability or subluxation in the left knee. Consequently, the veteran does not qualify for a higher rating under the provisions of 38 C.F.R. § 4.71a, Code 5257. While I note that the previous VA examination in June 1993 reflects an impression that the veteran has arthritis, this impression was not verified on X-ray examination. For example, the views of the knees failed to reveal any pertinent abnormalities. Right knee. In this case, the most recent VA examinations show that the veteran has limitation of flexion to 130 degrees. The veteran has not demonstrated the flexion limited to 45 degrees required for a 10 percent evaluation. 38 C.F.R. § 4.71, Code 5260. The veteran's extension was within normal limits as indicated by the recorded finding of zero degrees. 38 C.F.R. § 4.71, Plate II. A compensable rating requires extension limited to 10 degrees. 38 C.F.R. § 4.71a., Code 5261. Likewise, the most recent VA examination failed to show that the presence of lateral instability or subluxation in the right knee. Consequently, the veteran does not qualify for a higher rating under the provisions of 38 C.F.R. § 4,71a, Code 5257. Again, while I note that the previous VA examination, in June 1993 reflects an impression that the veteran has arthritis, this impression was not verified on X-ray examination. For example, the views of the knees failed to reveal any pertinent abnormalities. Functional Loss Due to Pain However, the veteran has demonstrated the functional loss due to pain in each that would be equivalent to an evaluation in excess of the current schedular zero percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v. Brown, 8 Vet. App. 202 (1995). Factors listed in 38 C.F.R. § 4.45 include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. The veteran demonstrated pain on extremes of motion at the February 1999 VA joints examination. He was determined to have 15 percent functional impairment in the knees. The examiner noted in addition that the veteran had arthralgias of the knees with functional loss due to pain. "The extent to which the veteran experiences pain or weakness is in question, as he takes very little for pain, uses no cane or appliance and walks well and the knee (sic) is stable." Nevertheless, it is clear that the preponderance of the evidence favors a 10 percent evaluation for chondromalacia of the left knee and a 10 percent rating for retropatellar syndrome of the left knee. Because the functional loss is due to painful motion determined to be slight in degree, however, there is no basis upon which to consider functional loss to be equivalent to an evaluation in excess of 10 percent. Extraschedular Rating In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Bagwell v. Brown, 9 Vet. App. 337 (1996). Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board finds that the schedular evaluations in this case are not inadequate, and there is no evidence of an exceptional disability picture in this case. The veteran has not required any recent hospitalization for his service- connected knee disabilities. Moreover, although he has indicated some degree of impairment of his industrial activities due to service-connected knee symptoms, he has not demonstrated marked impairment of vocational activities. In view of the foregoing, there is not basis for consideration for an extraschedular rating at this time. ORDER A 10 percent rating for chondromalacia of the left knee is granted, subject to regulations applicable to the payment of monetary awards. A 10 percent rating for retropatellar syndrome of the right knee is granted, subject to regulations applicable to the payment of monetary awards. MARY GALLAGHER Member, Board of Veterans' Appeals