BVA9503504 DOCKET NO. 89-22 358 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES Entitlement to service connection for a back disorder, to include arthritis of the lumbar spine. Entitlement to an increased rating for residuals of a right knee injury, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran had active service from October 1961 to October 1963, and from April 1964 to March 1974. This appeal to the Board of Veterans' Appeals (Board) arises from an August 1988 rating decision of the Winston-Salem Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded to the RO in April 1990 and February 1992 for further development. The issue of service connection for post-traumatic stress disorder (PTSD) was before the Board when the case was remanded in February 1992. Service connection and a 100 percent rating were awarded in a December 1993 rating action. As this is a total grant of the benefits sought, these issues are not for Board review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right knee disorder is more disabling than currently evaluated. He states that he has required regular treatment for the disorder. The veteran further contends that his back disorder had its origin in service. 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 claims for service connection for a back disorder, to include arthritis of the lumbar spine, and for an increased rating for a right knee disorder. FINDINGS OF FACT 1. There was no symptomatology, diagnosis or treatment for any form of back disorder in service or until many years after service. Current back findings are not shown to be related to service. 2. Arthritis of the lumbar spine was not shown to a compensable degree within one year of separation from service. 3. Flexion of the veteran's right knee is not less than 90 degrees and extension is not limited to more than 10 degrees; moderate recurrent subluxation or lateral instability is not shown. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by service, nor may arthritis of the lumbar spine be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 2. A rating in excess of 10 percent for a right knee disorder is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5257, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded. By this, we mean that he has submitted claims that are plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claims. 38 U.S.C.A. § 5107 (West 1991). I. Entitlement to service connection for a back disorder, to include arthritis of the lumbar spine A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The veteran sought treatment in a service medical facility in October 1964 for a low back problem. However, as he did not stay to see the physician, there was no record of any findings. On examination in November 1964, for the purpose of airborne training, the veteran's spine was normal, and there were no musculoskeletal abnormalities. The veteran was subsequently treated for a right shoulder disorder. However, no symptomatology, diagnosis or treatment for any form of back disorder was recorded. Moreover, when the veteran was examined in March 1974 for the purpose of separation from service, the spine was normal and there were no musculoskeletal abnormalities. The veteran indicated that he was in good health. On VA compensation examination in March 1982, the veteran limited his complaints to the right knee, a disorder for which service connection is already in effect. During a December 1991 hospitalization, the veteran made reference to an injury in 1970, and indicated that he had had back pain since that time. On examination, X-ray films of the lumbosacral spine showed minimal arthritic changes at L5 and S1, with narrowing of the joint interspace. The veteran was placed on a rehabilitation plan. The evidence of record indicates that the veteran complained on one isolated occasion of back pain, but left the clinic before any findings could be noted. No further treatment was required in service for any form of back disorder, and the veteran's back was completely normal on separation. While the veteran made reference to an injury in service when he was treated many years after separation from service, this claim is not substantiated by the contemporaneous evidence of record. The Board must give much greater probative weight to the reports of treatment in service than to the veteran's memory many years after service. The preponderance of the evidence is against the veteran's claim for service connection for a back disorder on a direct basis. The Board further notes that when the veteran was hospitalized in a VA facility in November 1990, the diagnoses included history of low back pain secondary to arthritis. Service connection for arthritis may be granted if it is demonstrated that the disorder manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). A review of the evidence before us shows no evidence of arthritis of the lumbar spine until many years after service. On VA examination in March 1982, the veteran voiced no complaints with regard to the arthritis. During hospitalization in March 1988, the veteran did not report any symptomatology resultant from arthritis, nor did physical examination reveal any acute problems. Under such circumstances, service connection for arthritis of the lumbar spine on a presumptive basis is not warranted. II. Entitlement to an increased rating for a right knee disorder The veteran was treated on numerous occasions in service for complaints of right knee pain. In an orthopedic consultation in April 1970, the veteran retained full range of motion in the right knee. The cartilage was bulky and painful to touch. Moderate effusion was present in the joint area. On VA compensation examination in March 1982, there was full range of motion of the right knee. Slight crepitation was present on passive range of motion. The veteran's current 10 percent rating reflects mild recurrent subluxation or lateral instability, or flexion limited to 45 degrees or extension limited to 10 degrees. For a 20 percent rating to be granted, there must be moderate recurrent subluxation or lateral instability, or flexion limited to 30 degrees or extension limited to 15 degrees. 38 C.F.R. Part 4, Codes 5257, 5260, 5261 (1994). A review of the current symptomatology does not indicate that an increased rating is warranted. When the veteran was examined for compensation purposes by the VA in May 1990, range of motion of the right knee was from 90 degrees of flexion to lacking 5 degrees of extension. There was marked medial joint line tenderness and mild lateral ligamentous laxity. When the veteran was examined for compensation purposes by the VA in December 1992, there was a mild arthritic deformity with a prominence of the medial tibia to the right. He had mild crepitus. Active range of motion was from 10 degrees to 125 degrees, with passive range of motion from 5 degrees to 125 degrees. The anterior drawer and Lachman's signs were negative. The diagnosis was degenerative joint disease, right knee. These findings, while demonstrating that the veteran has difficulties as a result of his service-connected right knee disorder, do not show that a rating in excess of 10 percent is warranted. Flexion is possible to at least 90 degrees, well above the limit of 30 degrees required for a 20 percent rating. Limitation of extension, at the most severe, only lacked 10 degrees. Moderate recurrent subluxation or lateral instability is not shown on repeated examination. Under such circumstances, the preponderance of the evidence is against the veteran's claim for an increased rating for the right knee disorder. In reaching the above decision, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the veteran's service- connected right knee disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1) (1993). For example, the disability in question did not recently require frequent periods of hospitalization, nor do they cause marked interference with employment which is not in some way already contemplated by the evaluations currently in effect. ORDER Service connection for a back disorder to include arthritis of the lumbar spine is denied. An increased rating for a right knee disorder is denied. J. U. JOHNSON 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.