BVA9502354 DOCKET NO. 92-17 019 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for a seizure disorder. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for heart disease. 3. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for back disability. 4. Entitlement to an evaluation in excess of 30 percent for residuals of a right knee injury with traumatic arthritis from November 20, 1989, to June 30, 1994. 5. Entitlement to an evaluation in excess of 30 percent for residuals of a left knee injury with traumatic arthritis from November 20, 1989, to June 30, 1994. 6. Entitlement to an evaluation in excess of 20 percent for residuals of a right knee injury with traumatic arthritis beginning on July 1, 1994. 7. Entitlement to an evaluation in excess of 20 percent for residuals of a left knee injury with traumatic arthritis beginning on July 1, 1994. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from December 1966 to January 1968. In February 1993, the Board of Veterans' Appeals (Board) remanded this case, which at the time consisted of the certified issues of entitlement to evaluations in excess of 30 percent for residuals of bilateral knee injuries with traumatic arthritis, to the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma for additional development, to include examination of his bilateral knee disorders, adjudication of the issue of entitlement to service connection for a right hand disability, and whether new and material evidence had been submitted to reopen the veteran's claims for service connection for a seizure disorder, heart disease, and low back disability. VA examination was conducted in July 1993. Based on the examination results, a September 1993 rating decision proposed reductions in the veteran's service-connected bilateral knee disorders under the provisions of 38 C.F.R. § 3.105(e) (1993) and denied service connection for residuals of a fracture of the right fifth finger. An October 1993 supplemental statement of the case determined that the veteran had not submitted new and material evidence to reopen his claims for entitlement to service connection for a seizure disorder, heart disease, and back disability. An April 1994 rating action reduced the veteran's 30 percent evaluations for his bilateral knee disorders to 20 percent, effective July 1, 1994. Correspondence from the veteran, which was received in July 1994, disagreed with the reductions. Based on the above noted actions of the RO, the issues for consideration are as listed on the title page. A November 1971 rating decision denied service connection for dizzy spells. The veteran was notified of that decision later in November 1971, and he did not timely appeal. A December 1978 rating decision denied service connection for heart disease. The veteran was notified later in December 1978, and he did not timely appeal. An October 1988 rating decision denied service connection for a low back disability. The veteran was notified in November 1988, and he did not timely appeal. Although the rating decision of September 1993 denied service connection for residuals of a fracture of the right fifth finger, the veteran was never subsequently notified of the denial. Consequently, the RO should take appropriate action with respect to that issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying the issues on appeal because he has a seizure disorder, a back disability, and heart disease as a result of his military service and because his service-connected knee disabilities are more severe than they have been evaluated. The veteran also maintains that his knees should be reexamined because the July 1993 VA examination was not performed by an orthopedic specialist. 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 new and material evidence to reopen the veteran's claims for service connection for a seizure disorder, heart disease, and low back disability, has not been submitted. It is the further decision of the Board that the preponderance of the evidence is against the veteran's claims for evaluations in excess of 30 percent from November 20, 1989, to June 30, 1994, and in excess of 20 percent beginning on July 1, 1994, for residuals of right and left knee injuries with traumatic arthritis. FINDINGS OF FACT 1. Satisfactory effort has been made to obtain all relevant evidence necessary to an equitable determination of the veteran's appeal. 2. A November 1971 rating decision denied service connection for dizzy spells, and the veteran did not timely appeal; evidence received since November 1971 is not sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record, to establish a reasonable possibility of changing the outcome of the prior decision. 3. A December 1978 rating decision denied service connection for heart disease, and the veteran did not timely appeal; evidence received since December 1978 is not sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record, to establish a reasonable possibility of changing the outcome of the prior decision. 4. An October 1988 rating decision denied service connection for low back disability, and the veteran did not timely appeal; evidence received since October 1988 is not sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record, to establish a reasonable possibility of changing the outcome of the prior decision. 5. Symptomatology of the veteran's service-connected right knee disability from November 20, 1989, through June 1994 caused no more than severe impairment. Ankylosis was not shown. 6. Symptomatology of the veteran's service-connected left knee disability from November 20, 1989, through June 1994 caused no more than severe impairment. Ankylosis was not shown. 7. Symptomatology of the veteran's service-connected right knee disability subsequent to July 1, 1994, causes no more than moderate impairment. 8. Symptomatology of the veteran's service-connected left knee disability subsequent to July 1, 1994, causes no more than moderate impairment. 9. The veteran's residuals of right and left knee injuries with traumatic arthritis do not involve an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. New and material evidence not having been submitted, the veteran's claim for service connection for a seizure disorder is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. New and material evidence not having been submitted, the veteran's claim for service connection for heart disease is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 3. New and material evidence not having been submitted, the veteran's claim for service connection for back disability is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 4. The criteria for an evaluation in excess of 30 percent for residuals of a right knee injury with traumatic arthritis from November 20, 1989, to June 30, 1994, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5256, 5257, 5261 (1993). 5. The criteria for an evaluation in excess of 30 percent for residuals of a left knee injury with traumatic arthritis from November 20, 1989, to June 30, 1994, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5256, 5257, 5261 (1993). 6. The criteria for an evaluation in excess of 20 percent for residuals of a right knee injury with traumatic arthritis since July 1, 1994, have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5257 (1993). 7. The criteria for an evaluation in excess of 20 percent for residuals of a left knee injury with traumatic arthritis since July 1, 1994, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a), that is, they are not inherently implausible. Additionally, the facts relevant to the issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). New and Material Evidence To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including organic disease of the nervous system, cardiovascular disease, or arthritis, when manifested to a compensable degree within a year after service discharge. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. 3.307, 3.309 (1993). A November 1971 unappealed rating decision denied service connection for dizzy spells, a December 1978 unappealed rating decision denied service connection for heart disease, and an October 1988 unappealed rating decision denied service connection for low back disability. Once a claim has been denied by the RO, and is not timely appealed, it is considered final and will not be reopened unless new and material evidence is submitted in support thereof. 38 U.S.C.A. §§ 5108, 7105(a) (West 1991); 38 C.F.R. § 3.156(a). To be "new and material," the evidence must be more than merely cumulative; there must be a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the prior decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence on file prior to the November 1971 rating action that denied service connection for dizzy spells consisted of the veteran's service medical records, VA hospital discharge reports, and a May 1970 VA examination report. That evidence showed one notation in service of dizziness secondary to hyperventilation, with no subsequent complaints or findings of dizziness or seizures either in service, including on discharge examination in January 1968, or in the post-service evidence prior to November 1971. Evidence received since November 1971 consists of multiple VA outpatient records covering treatment beginning in June 1971, VA hospital discharge reports beginning in June 1972, and VA examination reports beginning in January 1973, as well as the veteran's statements and his testimony at a personal hearing at the RO in September 1985. The evidence received after November 1971 reveals that when the veteran was hospitalized for excision of a pilonidal cyst in May and June 1974, he indicated that he had been taking medication for dizziness and blackout spells since an automobile accident in 1972. No pertinent abnormality was diagnosed on hospital discharge in June 1974. Subsequent evidence, including VA compensation examinations, does not contain any complaints or findings of dizziness or a seizure disorder, and the examiner noted on VA examination in July 1993 that the veteran was neurologically normal and did not have a history compatible with a seizure disorder. There is no new medical evidence showing that a seizure disorder is related to service. Under such circumstances, the evidence received by the VA since November 1971 does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the November 1971 denial. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The evidence on file prior to the December 1978 rating decision that denied service connection for heart disease consisted of the veteran's service medical records, VA outpatient records, VA hospital discharge reports, and VA examination reports. The veteran's service medical records do not contain any complaints or findings relevant to heart disease, and the first notation on file of heart problems was in August 1977, when it was reported that the veteran had a two year history of chest pain. Mild right coronary artery disease was diagnosed in August 1977. The evidence prior to December 1978 does not relate the veteran's heart problems to service. Evidence received since December 1978 consists of VA hospital discharge reports beginning in September 1980, VA outpatient records beginning in August 1982, VA examination reports beginning in January 1985, and the previously noted veteran's statements and testimony. The evidence received after December 1978 does not contain any complaints or finding of chronic heart disease. The examiner noted on VA examination in July 1993 that there was no cardiovascular abnormality and that the veteran did not have any symptoms compatible with heart disease. When attention is directed to the evidence received by the VA since December 1978, it is clear that such evidence does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the December 1978 denial. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The evidence on file prior to the October 1988 rating decision that denied service connection for a low back disability consisted of the evidence noted prior to December 1978, plus additional VA outpatient, hospital, and examination reports, as well as the veteran's September 1985 personal hearing testimony. That evidence reveals that the veteran complained in service in April 1967 that he had fallen on his side several weeks earlier; muscle strain on the left side, with no back or spine tenderness, was noted. There were no subsequent back complaints or findings in service, including on discharge examination in January 1968. The first post-service notation of a back problem was not until VA examination in November 1978. Lumbosacral strain was diagnosed on VA outpatient records for May 1987. No medical evidence prior to October 1988 relates a back disability to service. Evidence received subsequent to the October 1988 rating decision consists of VA outpatient records for November 1989, VA examination reports for April 1990, June 1991, and July 1993, as well as the veteran's statements in support of his claim. The evidence received after October 1988 contains a November 1989 assessment of degenerative joint disease of the lumbosacral spine. X-ray studies of the back during VA examination in June 1991 showed degenerative disc disease of the lumbar spine. The veteran complained on VA examination in July 1993 of chronic low back pain, which was without radiation but was aggravated by physical activity. Back examination did not reveal any muscle spasm or tenderness; there was full range of motion of the spine except for flexion that was limited to 60 degrees because of pain. A history of chronic low back pain was diagnosed. Subsequent x-ray studies of the lumbar spine in July 1993 did not show any significant degenerative changes. Because the clinical evidence does not show that the veteran's back disability is related to service, it does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the October 1988 denial. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). According to the VA Schedule for Rating Disabilities, a 10 percent evaluation is provided for impairment of the knee, such as recurrent subluxation or lateral instability, that is considered slight; a 20 percent evaluation is provided when the impairment is moderate, and a 30 percent evaluation is provided when the impairment is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted above, the RO reduced the veteran's evaluations for his service-connected right and left knee disabilities from 30 to 20 percent, effective July 1, 1994. Consequently, the Board must first determine whether a rating in excess of 30 percent is warranted for the right and left knee disabilities from November 20, 1989, to June 30, 1994. According to the VA Schedule for Rating Disabilities, the 30 percent evaluation for severe knee impairment is the maximum provided under Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 40 percent evaluation is provided under Diagnostic Code 5256 for ankylosis of the knee in flexion between 10 degrees and 20 degrees and under Diagnostic Code 5261 when extension of the leg is limited to 30 degrees; the maximum evaluation provided for limitation of flexion of the leg is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5260, 5261. The Board has reviewed the entire record and finds that, historically, no evidentiary considerations are apparent that would warrant a detailed exposition of remote clinical histories and findings pertaining to the disabilities at issue or that would materially alter our disposition of the disabilities at issue. VA outpatient records from March 1987 to June 1988 reveal that in August 1987 the veteran was wearing a right knee brace. It was noted in March 1988 that he had hurt his left knee approximately three months earlier when he fell on it. Traumatic arthritis of both knees was diagnosed in March 1988. On VA examination in July 1988, the veteran complained of bilateral knee pain on even slight pressure. X-ray studies showed bilateral degenerative arthritis. The diagnoses were residuals of a right knee injury with a tear of the medial semilunar cartilage and with traumatic arthritis and degenerative joint disease of the left knee. VA outpatient records for November 1989 noted degenerative joint disease of the knees. On VA examination in April 1990, it was noted that the veteran had been wearing a brace on each knee for three or four years. He complained of pain, popping, grinding, weakness, and swelling of the right knee and of pain, aching, tenderness, swelling, and grinding of the left knee. Physical examination revealed pain, swelling, and crepitation in both knees. There was tenderness along the medial and lateral joint line of the left knee, laxity of the medial collateral ligaments of both knees, and moderate laxity of the lateral collateral ligament of both knees. McMurray's sign was positive bilaterally. Bilateral range of knee motion was to 110 degrees. The veteran had difficulty walking on his toes and heels, and he could not squat because of pain and weakness in both knees. Patellar reflexes were equal and normal, bilaterally. X-rays of the knees showed degenerative arthritic changes, bilaterally. Residuals of bilateral knee injuries with traumatic arthritis were diagnosed. The veteran noted on VA examination in June 1991 that he had had problems with his left knee brace and had stopped using it. He said that he used a cane to walk and that he fell frequently. Physical examination revealed that he had a bilateral limp, was unable to squat down or stand up because of pain and weakness in his knees, and was unable to demonstrate range of back motion because of bilateral knee instability. X-ray studies of the knees did not show any abnormality. On VA examination in July 1993, the veteran complained of bilateral knee pain, swelling, and locking, without instability. He indicated that his knee braces broke several months prior to the examination and that he had not been able to get them replaced. Physical examination of the knees revealed full passive range of motion of both knees, with active bilateral range of motion from 0 to 120 degrees. The veteran complained of bilateral knee pain with any movement. There was no tenderness to palpation, no crepitus, and no instability. He had good muscular development and strength in both legs but could only partially squat because of bilateral knee pain. The pertinent diagnosis was symptomatic knees, by history, without objective changes, rule out x-ray changes. X-ray studies of the knees in July 1993 did not show any significant degenerative changes or other abnormality. The evidence reveals that although the veteran has had problems with his knees over the years, and arthritis was first shown on x-rays studies in October 1985, the recent x-ray evidence of arthritis is no more than minimal, since x-rays of the knees in June 1991 were interpreted as not showing any arthritis and x- rays on the most recent VA examination, in July 1993, did not show any "significant" arthritis. Full range of motion of the legs is considered to be from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71 Plate II. The above evidence did not show ankylosis of either knee or that extension of either leg was limited to 30 degrees or more. Although motion on VA examination in April 1990 was 110 degrees, it appears that this loss of motion was due to limitation of flexion, rather than extension, since active motion on VA examination in July 1993 was from full extension of 0 degrees to 120 degrees of flexion and passive motion was completely full. Consequently, an evaluation in excess of 30 percent for the veteran's service-connected bilateral knee disabilities from November 20, 1989, to June 30, 1994, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261. The Board also finds that the current evidence does not show more than moderate impairment of the knee because the veteran's most recent bilateral knee symptomatology does not involve any tenderness, crepitus, or instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Therefore, an evaluation in excess of 20 percent for either service-connected knee disability subsequent to June 30, 1994, is not warranted because bilateral knee symptomatology does not more nearly approximate severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.7. Although the veteran contends that he should be reexamined because the July 1993 VA examination was not performed by an orthopedic specialist, the Board notes that the February 1993 remand request for an orthopedic examination was complied with. The July 1993 examination included physical and x-ray findings and is as complete as the April 1990 examination upon which the increase from 20 to 30 percent for the veteran's bilateral knee disability was based. 38 C.F.R. § 3.344(a) (1993). Therefore, this case does not need to be remanded again for another examination. The Board has also considered the provisions of 38 C.F.R. 3.321(b)(1) regarding the assignment of extraschedular evaluations. However, the veteran's disability picture is not exceptional or unusual, 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. ORDER New and material evidence not having been submitted, the claims for service connection for a seizure disorder, heart disease, and back disability are not reopened. Evaluations in excess of 30 percent for residuals of a right knee injury with traumatic arthritis and residuals of a left knee injury with traumatic arthritis from November 20, 1989, to June 30, 1994, are denied. Evaluations in excess of 20 percent for service-connected bilateral knee disabilities beginning on July 1, 1994, are denied. ROBERT E. SULLIVAN 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.