BVA9502411 DOCKET NO. 91-52 407 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a right total hip replacement (THR). 2. Entitlement to service connection for residuals of trench feet. 3. Entitlement to an increased evaluation for residuals of a left total knee replacement (TKR), currently evaluated as 60 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from November 1952 until September 1954. This matter came before the Board of Veterans' Appeals (the Board) from a July 1991 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in November 1992 for procedural and evidentiary development. Since that time, the issues of entitlement to service connection for residuals of trench feet and entitlement to a total rating have been developed for appellate consideration. A 30 percent evaluation had been assigned for the veteran's service-connected residuals of a gunshot wound of the left knee (now classified as residuals of a left TKR) effective since September 30, 1954, except for temporary total ratings of 100 percent based on VA hospitalization or need for convalescence, and under 38 U.S.C.A. § 110 (West 1991) and 38 C.F.R. § 3.951(b) (1993) that 30 percent rating is protected from reduction. Following the November 1992 Board remand, a rating decision of November 1993 assigned a 60 percent schedular evaluation for that disability, effective July 1, 1991. In the November 1994 informal hearing presentation, a claim was set forth for service connection for arthritis of the left hip and right knee, claimed as secondary to the service-connected left total knee replacement. A claim was also set forth for a compensable evaluation for the service-connected mycotic (fungal) infection of the left foot. However, these matters have not been addressed by the RO. Inasmuch as they are not inextricably intertwined with the issues currently developed for appellate consideration, they are referred to the RO for appropriate consideration. See Kellar v. Brown, 6 Vet.App. 157 (1994). Lastly, in the informal hearing presentation, the veteran's service representative suggested that there might be some confusion on the part of the veteran with respect to his claim for service connection for bilateral trench foot from a cold injury during service in view of a possibility that he may now have a bilateral fungal (mycotic) infection of the feet. If, in fact, the veteran desires to claim entitlement to service connection for bilateral mycotic or fungal infection, this should be clarified in writing and should be submitted to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that although there is no evidence of arthritis of the right hip until more recent years, this is not dispositive inasmuch as the evidence reflects a causative relationship between the service-connected left TKR and the development of arthritis in the right hip which led to the a right THR. It is asserted that the RO failed to note the greater advancement of arthritis in the right hip as a result of increased weight bearing on the right hip from the service-connected left TKR. It is maintained that the RO incorrectly interpreted the opinion of the recent VA examiner which demonstrates a causative relationship between the right THR and the service-connected left TKR. It is averred that the RO inappropriately considered information from the "Merck Manual" in denying the claim. It is also contended that the veteran may have incurred a cold injury of his feet during military service causing bilateral trench feet. In the recent informal hearing presentation, no specific allegations were set forth as to the claim for an increased evaluation for residuals of a left TKR, but inasmuch as the 60 percent evaluation currently assigned is the highest schedular rating assignable, the Board assumes that an extraschedular evaluation is claimed. It is maintained that the veteran's service-connected left TKR, by itself, precludes substantially gainful employment as reflected by information associated with VA outpatient treatment (VAOPT) records and that this is further substantiated by impairment from the residuals of the right THR, for which service connection should also be granted. 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 in favor of secondary service connection for a right THR and for a total rating based on individual unemployability due to service-connected disabilities, but is against the claims for service connection for residuals of trench feet and entitlement to an extraschedular evaluation for residuals of a left TKR. FINDINGS OF FACT 1. The veteran had active service from November 1952 until September 1954. 2. The veteran did not have a right hip injury or disability during military service, nor did he sustain trench feet or a cold injury of the feet during service, and he did not develop arthritis of the right hip within one year after active service. 3. Following severe disability from the in-service gunshot wound of the left knee, the veteran had weakness and limitation of motion of the left knee which became worse after post-service left patellectomy and arthroscopic debridements. He had findings including left knee instability and weakness which led to greater weight bearing and increased arthritis of the right hip resulting in a right THR. 4. There is no clinical evidence of residuals of trench feet, including any clinical evidence of vascular or skin changes of the feet; there is no evidence that the mycotic infection of the left foot is related to claimed frostbite residuals. 5. The veteran is currently assigned a 60 percent schedular evaluation, which is the highest schedular rating assignable, for residuals of a left TKR stemming from a gunshot wound during military service to the left knee with subsequent patellectomy and multiple arthroscopic procedures. 6. Subsequent to the veteran's left TKR he has not been hospitalization for treatment of left knee disability and the left TKR does not present an exceptional or unusual disability picture. 7. A noncompensable evaluation is assigned for the veteran's service-connected mycotic infection of the left foot and a 60 percent schedular evaluation is assigned for a left total knee replacement and service connection is also warranted for residuals of a right THR. 8. The veteran had worked for many years at the United States Post Office, but following his left TKR, he has been precluded from substantially gainful employment by reason of his service connected disorders. CONCLUSIONS OF LAW 1. Chronic right hip disability was not incurred in or aggravated by active service, nor did arthritis of the right hip manifest to a compensable degree within one year after active service, but arthritis of the right hip leading to a right THR is proximately due to and the result of service-connected left TKR. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1993). 2. Trench foot was not incurred in or aggravated by active service and is not related to the mycotic infection of the left foot. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1993). 3. An evaluation in excess of 60 percent for residuals of a left TKR is not warranted on either a schedular or extraschedular basis. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.68, 4.71a, Diagnostic Code 5055 (1993). 4. The veteran's service-connected disabilities preclude substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that he has presented claims which are plausible. That statute also mandates a duty to assist the veteran in developing all pertinent evidence. In this connection, it was requested in the recent informal hearing presentation that the veteran be afforded further VA examinations to determine the presence of trench feet and to clarify whether there is a causal or etiological relationship between the claimed right THR with the service-connected residuals of a left TKR. With respect to the claim for service connection for residuals of trench feet, there is voluminous evidence on file of findings on examinations of the veteran's feet, but none of these demonstrate the existence of clinical findings reflecting or even suggesting the possibility of residuals of a cold injury, such as changes of the skin or vascular changes (as opposed to the presence of a fungal infection) which would indicate a reasonable possibility of allowance of the claim within the meaning of 38 C.F.R. § 3.326 (1993). With respect to any causative relationship between the claimed right hip and left knee disabilities, it is also our determination, for reasons which will become apparent, that the evidentiary record is sufficient in scope and in depth for a fair, impartial, and fully informed appellate decision. Service connection is to be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. This requires a finding that there is current disability which has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). However, it need not be shown that the disability was present or diagnosed during service but only that there is a nexus between the current condition and military service, even if first diagnosed after service, on the basis of all the evidence, including pertinent service medical records. This can be shown by establishing that the disability resulted from personal injury or disease suffered in the line of duty. 38 C.F.R. § 3.303(d) (1993); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Where, as here, the veteran had ninety (90) days or more of war or peacetime service after December 31, 1946, and arthritis manifest to a compensable degree within a year after service, it is rebuttably presumed to be of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (1993). The service medical records are negative for right hip disability and trench feet, although there is an August 1953 notation of dermatitis of the left foot. The veteran was hospitalized in June 1953 for a penetrating gunshot wound of the left knee joint with a chip fracture. An X-ray disclosed a comminuted fracture of the base of the tibial spines and one view suggested that the posterior articular margin of one femoral condyle had also sustained a small fracture. He underwent arthrotomy and irrigation of the knee joint with removal of loose bone fragments. There was secondary closure of the wound and he underwent extensive rehabilitation. Similarly, there is no evidence of trench feet or disability of the right hip, to include arthritis of the right hip, within the first post service year or within several years after service discharge. Residuals of a Right Hip Prosthesis Inasmuch as the primary contention on appeal is that the right THR is secondary to the left TKR, a review of the clinical history of the veteran's service-connected left knee disorder is necessary. On VA examination in October 1954, one month after service, the veteran had 1/2-inch shortening of the left leg and walked with a slight limp. He also complained of instability and buckling of the left knee. In April 1960, private physician reported that the veteran had some muscular atrophy of the left leg, as well as instability, weakness, and giving way of the left knee. During VA hospitalization in 1966, as a result of traumatic arthritis of the joint, he underwent a patellectomy, i.e., removal of the left patella. "The patella is a thick flat triangular movable bone that forms the anterior part of the knee and protects the front of the joint." Hoag v. Brown, 4 Vet.App. 209, 211 (1993). The patella "serves to protect the front of the joint, and increases the leverage of the Quadriceps femoris by making it act at a greater angle." Gray's Anatomy, 246 (29th ed. 1973). As a result of the removal of the left patella, the veteran had weakness in function of the left quadriceps. VA outpatient treatment (VAOPT) records of May and June 1966 reflect his use of a cane and a left knee brace. During VA hospitalization in 1968, he had undergone an osteotomy of the left femoral condyle and a VAOPT of June 1970 noted that he had changed his job to take a less strenuous position because of his left knee disorder and that possible fusion of the left knee was to be considered. An X-ray of the right hip in July 1982 at a private medical facility disclosed the right hip was normal, but a treatment note from that facility reflects that he complained of right hip pain radiating down the right thigh. An X-ray of the lumbosacral spine disclosed disc space narrowing and the impression was discogenic disease with right sciatic neuropathy. Accordingly, the pain in the right hip and right thigh at that time was due to neurological impairment in the lumbar spine, as opposed to pathology of the right hip. The veteran underwent arthroscopic debridement of the left knee during VA hospitalizations in November 1985 and May 1987, and during the latter hospitalization, he also underwent removal of loose bodies from the left knee. On appeal, it is conceded that the aging process can cause arthritis of joints, including the right hip. However, it is asserted that the RO was incorrect in concluding that there was no premature osteoarthritic process in the right hip suggesting some relationship between the left TKR and the development of severe arthritis in the right hip (leading to the right THR). In this connection, a VA X-ray of the veteran's pelvis on an outpatient basis in February 1990 disclosed minimal degenerative osteoarthritic changes of the hips. A VAOPT of March 1990 reflects that an orthopedic conference concluded that the veteran's right quadriceps power was stronger than the left and recommended replacement of the left knee, but also noted that he was 72 inches in height and weighed 190 pounds. From this, it can be seen that there was no obesity contributing to increased weight upon the right hip. The veteran underwent a left TKR during VA hospitalization in April 1990. A VAOPT record of July 1990 indicates that during the veteran's recovery phase, he had developed right hip pain, as well as pain in the right posterior thigh. A VA X-ray on an outpatient basis in November 1990 of the veteran's pelvis disclosed only mild osteoarthritis of the left hip, but advanced osteoarthritis in the right hip. Accordingly, there was a significant change in the degree of arthritis in the right hip during the nine-month period between the February to the November 1990 X-rays, during the earlier portion of which he had the left TKR. The veteran then underwent a right THR during VA hospitalization in January and February 1991 and the pathology report discloses that the right femoral head was somewhat flattened on one side and that the articular surface was eroded and irregular, consistent with osteoarthritis. When the veteran was afforded a VA orthopedic examination in April 1991 it was noted that his right hip had gradually deteriorated and become severely symptomatic approximately 10 to 12 years earlier, finally leading to the right THR. He was afforded a VA orthopedic examination in April 1993, pursuant to the November 1992 remand by the Board. At that time there was an extensive review of his claims folder and a clinical history was also obtained from him. His clinical and surgical history was related and it was also noted that the 1982 X-ray of his right hip was normal. After an examination, the examiner commented that following the initial in-service left knee injury, the veteran had had to bear most of his weight on his right hip. The examiner also commented that "[a]lthough there was no definite evidence that increased weight-bearing on the right hip because of his left knee problem directly resulted in this osteoarthritis of the right hip, there is enough suggestive evidence, from the history, to make me believe that a part of the problem in his right hip that resulted in a total hip replacement was due to the injury to his left knee, and subsequent multiple surgeries." When the doctrine of resolving all doubt in favor of the veteran is considered under 38 U.S.C.A. § 5107(b) (West 1991), in light of the continuously severe disability of the left knee, rated at 30 percent until July 1991, the weakening of the left knee from the left patellectomy and instability of the left knee, together with the credible history of right hip symptoms for a number of years prior to the right THR and evidence of increased osteoarthritic changes in the right hip greater than those in the left hip, particularly following the left TKR, it is the determination of the Board that the opinion of the VA examiner in April 1993, fairly construed, demonstrates that the service-connected disability of the left knee was the proximate cause or resulted in the increased osteoarthritic changes in the right hip leading to the right THR. Although that examiner noted that the left knee disability may have been "a part of the problem" leading to the right hip disability, there is no requirement in the law that a service-connected disability be the only or sole cause in the development of additional disability for which service connection is warranted; rather, the regulations only require that service-connected disability be the proximate cause of or result in additional disability. It is the determination of the Board that such proximate causation is shown. Residuals of Trench Feet "Trench foot is a painful foot disorder resembling frostbite and resulting from exposure to cold and wet." Moore v. Derwinski, 1 Vet.App. 401, 402 (1991). The dermatitis of the veteran's left foot noted during service in August 1953 was also found on VA examination in October 1954, one month after service, and was diagnosed as a mycotic infection (a fungal infection) which is now service-connected. However, a subsequent official dermatology examination in March 1960 diagnosed a mycotic infection of the left foot by history only. It was also noted at that time that the veteran had complained of an onset of blisters of the left foot and that he reported having had "jungle rot" and that his condition was worse in the summer, i.e., during warm weather. However, there was no evidence of any skin disorder at the time of this examination. It is not until correspondence of February 1974 that the veteran first related having had trench foot during military service. In correspondence from the veteran in April 1977, he related that he had had a frozen right foot during service which caused a fungal condition, and a VAOPT record of January 1977 noted a reported history of a frostbite injury of the left foot years earlier. Although a frostbite or cold injury of the feet may cause vascular disability and skin changes, there is no medical evidence on file which shows that such a cold injury leads to a fungal infection of the feet. Speculation of the veteran in this regard may not be considered inasmuch as he is not a medical professional and is thus not competent to render an opinion in this regard, even if it is noted in the form of a clinical history. In this connection, a VAOPT record of February 1977 noted that the veteran had tinea pedis. "Tinea pedis is athlete's foot." Antonian v. Brown, 4 Vet.App. 179, 181 (1993). In sum, there is no evidence, despite the official dermatology examination in March 1960 and repeated VAOPT examinations over the years, of skin or vascular changes symptomatic of trench foot, nor has there been any diagnosis that the veteran now has any residuals of a cold injury or trench foot. As indicated earlier, if the veteran, in fact, desires to claim service connection for a bilateral fungal or mycotic infection, (other than at the left foot) such a claim should be filed with the RO. Left Total Knee Replacement Disability evaluations are determined by the application of a schedule of ratings which is based on 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 higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The 60 percent evaluation currently assigned for the left total knee replacement under 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5055 encompasses chronic residuals following implantation of a knee prosthesis, consisting of severe painful motion or weakness in the affected extremity. A 100 percent schedular evaluation is warranted, and was assigned to the veteran, for one year following implantation of the prosthesis. No higher schedular evaluation can be assigned unless the veteran was to have amputation at the upper third of the right thigh, one-third of the distance from the perineum to the knee joint under 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5161 (1993). See also 38 C.F.R. § 4.68 (1993) (the amputation rule). Accordingly, it can be seen that the only means of awarding an evaluation in excess of the current 60 percent schedular evaluation is on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). Since the left TKR during VA hospitalization in April and May 1990, the veteran has not been hospitalized for treatment of left knee disability. Further, it is beyond question that the disability resulted in marked interference with employment, but this is encompassed in the 60 percent schedular rating currently assigned. Although the veteran continues to have complaints of instability of the left knee and uses a knee brace, he currently uses crutches at times, but this is due to the combined effect of the left TKR and the right THR. The disability stemming solely from the service-connected left TKR is not shown to present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular rating standards. Accordingly, an extraschedular evaluation in excess of the 60 percent schedular rating currently assigned is not warranted. Total Rating The established VA policy is that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled under 38 C.F.R. § 4.16(b). An unemployability rating is based primarily upon average impairment of earning capacity. 38 C.F.R. § 4.15. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a) and 4.15. Entitlement to individual unemployability must be established solely on the basis of impairment from service-connected disabilities. 38 C.F.R. § 3.341(a). Neither disability from nonservice-connected disabilities or due to advancing age may be considered. 38 C.F.R. §§ 3.341(a) and 4.19. The regulatory scheme for total ratings based on individual unemployability provide for a mix of objective and subjective criteria. The objective criteria are set forth at 38 C.F.R. § 3.340(a)(2) and provide for a total rating when there is a single disability or a combination of disabilities which result in a 100 percent schedular evaluation or where the requirements of 38 C.F.R. § 4.16(a) are met. Those requirements call for a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. The subjective criteria for a total rating are found at 38 C.F.R. §§ 4.16(b) and 3.321(b)(1). Together, these provide that a veteran who is unable to secure substantially gainful employment due to service-connected disabilities shall be rated totally disabled. Thus, under either the objective or subjective criteria, he must be unable to engage in substantially gainful employment due to the service-connected disabilities. A noncompensable evaluation is assigned for the veteran's service-connected mycotic infection of the left foot which is not shown to be disabling. The highest schedular evaluation of 60 percent is assigned for the left TKR which was necessitated due to the service-connected residuals of a gunshot wound of the left knee. Accordingly, the veteran meets the objective criteria of a single disability rated 60 percent or more. While normally a total rating may not be granted unless schedular ratings are assigned for all service-connected disabilities, it is clear that the service-connected left TKR, alone, is sufficient to preclude substantially gainful employment, as related by the VA examiner in April 1993. That examiner found that the veteran was "totally disabled from performing any kind of gainful employment. This would be due to his left knee alone, regardless of the fact that he had surgery on his total right hip." A VAOPT record in 1955 reflects that the veteran was employed as a porter lifting heavy equipment. On VA examination in February 1960, he reported that he was employed as a service station attendant. A VAOPT record of February 1969, as well as in June 1970, reflects that he had given up working more than six hours a day because of left knee pain and had changed his job from a clerical position at the Post Office to one in maintenance because of his left knee disability. A more recent VAOPT record of October 1984 noted that he continued to work at the Post Office. A light duty or restricted assignment request, as well as VA Form 3230, both signed by a VA physician, reflect that following the left TKR the veteran would never return to work due to the left knee surgery and arthritis of the right hip. VA Form 3230 of February 1991, signed by a VA physician, indicated that the veteran would not return to work following the right THR, and an essentially similar conclusion was reported in a February 1993 statement on VA Form 3230 by a VA physician, noting that the disabilities were the left knee and right hip replacements. Indeed, it is clear that since his total right hip replacement, he has not returned to full-time employment, and is incapable of doing so. Even though no disability rating has been assigned by the RO for the residuals of right THR this disability, when combined with the impairment from the residuals of the left TKR, precludes substantially gainful employment and warrants the assignment of a total rating. In reaching these determinations, the Board has given due consideration to the doctrine of resolving all doubt in favor of the veteran under 38 U.S.C.A. § 5107(b) which requires that if the evidence preponderates in favor of the veteran or is in relative equipoise, the claim must be allowed and that the claim may be denied only if the fair preponderance of the evidence is against the claim. It is the judgment of the Board that the fair preponderance of the evidence is against the claims for service connection for residuals of trench feet and for an increased evaluation for residuals of a left TKR, but that the preponderance of the evidence is in favor of service connection for the residuals of a right THR and for a total rating based on individual unemployability due to service-connected disabilities. ORDER Service connection for residuals of a right THR and a total rating based on individual unemployability due to service-connected disabilities are granted. Service connection for residuals of trench feet is denied, and an evaluation in excess of 60 percent for residuals of a left TKR is also denied. MICHAEL D. LYON 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.