BVA9501385 DOCKET NO. 93-04 016 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation for postoperative left knee replacement, currently rated as 30 percent disabling. 2. Entitlement to extension of a temporary total rating beyond the end of February 1992, arising from hospitalization and surgery in January 1991. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from October 1942 to November 1945. This case came before the Board of Veterans' Appeals (Board) on appeal from January and February 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying the issues on appeal because his left knee is unstable and the evidence submitted by Steven Weiner, M.D., shows that his left knee is more than 30 percent disabling. It was contended on the veteran's behalf in April 1993 that there is a lack of evidence on file on which to conclude that the veteran's 100 percent temporary total rating based on convalescence should be effective only through February 1992 and that, therefore, this case should be remanded to the RO to obtain outpatient records since December 1991. 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 a rating in excess of 30 percent for postoperative left knee replacement and for extension of a temporary total rating beyond the end of February 1992. 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. The veteran's left knee does not involve severely painful motion or weakness, significant limitation of motion, or nonunion of the tibia and fibula. 3. The veteran's postoperative left knee replacement does not involve an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. 4. The veteran's left knee replacement in January 1991 required the assignment of a 100 percent evaluation from January 23, 1991, through the end of February 1992; thereafter, there was no basis for a total disability rating. CONCLUSIONS OF LAW 1. An evaluation in excess of 30 percent for postoperative left knee replacement is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5055 (1993). 2. A temporary total rating, arising from hospitalization in January 1991, beyond the end of February 1992 is not warranted. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 4.30, and Diagnostic Code 5055 (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) because they are not inherently implausible. Additionally, the facts relevant to the issues have been properly developed and the statutory obligation of the VA to assist the veteran in the development of the issues has been satisfied. 38 U.S.C.A. § 5107(a). 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. The veteran's service-connected left knee disability is currently assigned a 30 percent evaluation under Diagnostic Code 5055 as the minimum allowable rating for a knee replacement; a 60 percent evaluation is provided under this Code when there are chronic residuals consisting of severely painful motion or weakness in the affected extremity; a 100 percent evaluation is provided for one year following the implantation of a prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. According to Note (1), the 100 percent rating for one year following the implantation of a prosthesis will commence after the initial grant of a one month total rating assigned under 38 C.F.R. § 4.30 following hospital discharge. Id. The veteran's service medical records reveal that he had "inadequate lateral instability" of the left knee on discharge examination in November 1945. He complained of left knee pain on VA examination in March 1954, which he said was the result of a truck accident in service. Orthopedic examination in March 1954 revealed full range of motion of the left knee with slightly abnormal lateral mobility; x-ray studies of the left knee were normal. Internal derangement of the left knee was diagnosed. On VA orthopedic examination in May 1959, the veteran complained that his left knee was somewhat unstable. Findings on physical examination in May 1959 included full range of motion of the left knee with slight thickening of the synovial lining, crepitation about the patella, and some loss of circumference of the left lower extremity, as compared with the right. X-ray studies revealed some narrowing of the left knee joint space and minimal spurring. The diagnosis in May 1959 was internal derangement of the left knee with lateral instability of the lateral collateral ligament. An August 1978 examination report from James W. Mayer, M.D., reveals that the veteran complained of left knee swelling and pain with any continued activity. Physical examination of the knee indicated that the medial collateral ligament was totally gone, with medial collapse of the knee, and that there was 3+ crepitus and muscle atrophy. Degenerative changes of the left knee, with severe ligament instability, was diagnosed. On VA examination in January 1981, the veteran's left knee condition was diagnosed as severe traumatic arthritis with a weak quadriceps muscle, a lax medial collateral ligament, and loss of motion. January 1991 records from St. Vincent Hospital reveal that the veteran underwent a left total knee replacement for severe degenerative arthritis; his discharge condition was considered satisfactory. February to December 1991 treatment records from Dr. Weiner reveal that the veteran complained in March 1991 of minor left patellofemoral pain but was making good progress, with good stability and range of motion of the left leg from 5 degrees to 115 degrees. He was doing well in June 1991, except for pain on the lateral aspect of the left knee due to a bone spur. The veteran underwent video arthroscopy of the left knee in December 1991, with debridement and miniarthrotomy involving removal of bony fragments. He did well post-operatively. On VA examination in February 1992, the veteran said that his surgery had helped considerably in relieving his left knee pain and had stopped his left knee instability. Physical examination revealed left knee range of motion from 0 degrees of extension to 130 degrees of flexion; there was no left knee instability. X- ray studies showed an essentially satisfactory appearance of the veteran's left knee prosthesis, with heterotopic bone formation suggested posteriorly. The examiner's impression was status post left knee replacement. It was noted that the veteran appeared to be doing quite well, with relief of some of his pain and of the instability. The above evidence reveals that the veteran's left knee surgeries were successful in relieving the left knee instability and much of the pain. X-ray studies in February 1992 showed good positioning of the left knee prosthesis, and range of motion of the knee was from 0 degrees to 130 degrees. Consequently, because the veteran does not have severely painful motion or weakness of the left lower extremity, an increased evaluation of 60 percent is not warranted under Diagnostic Code 5055. Additionally, the disability picture for the veteran's left knee disorder does not more nearly approximate the criteria for a 60 percent evaluation. 38 C.F.R. § 4.7. The Board also notes that, under the provisions of Diagnostic Code 5055, if a 60 percent evaluation is not warranted, intermediate degrees of residual weakness, pain, or limitation of motion should be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. Diagnostic Code 5256 provides a 40 percent evaluation for ankylosis of the knee in flexion between 10 and 20 degrees; Diagnostic Code 5261 provides a 40 percent evaluation when extension of the leg is limited to 30 degrees; and Diagnostic Code 5262 provides a 40 percent evaluation when there is nonunion of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, 5262. The Board finds these codes to be inapplicable to the veteran's disorder because there is no ankylosis, limitation of extension, or nonunion of the left knee. We have also considered the provisions of 38 C.F.R. 3.321(b)(1) regarding the assignment of extraschedular evaluations. We find this regulation to be inapplicable to the increased rating issue before us because the 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. The veteran believes that a 100 percent temporary total rating for convalescent purposes should have been extended past the end of February 1992. A March 1991 rating decision granted a 100 percent evaluation for convalescence due to surgery on the left knee from January 23, 1991, through the end of February 1991; the veteran was assigned a 100 percent schedular evaluation, from March 1, 1991, through the end of February 1992, with his 30 percent rating restored March 1, 1992. This rating action was done in accordance with the provisions of Diagnostic Code 5055, Note (1), which states that, following prosthetic knee replacement, the veteran will be assigned a total rating under 38 C.F.R. § 4.30 through the end of the first full month following hospital discharge and then will be assigned a 100 percent schedular rating for the following year. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The subsequent 30 percent evaluation beginning March 1, 1992, was based on the results of VA examination of the left knee in February 1992, which showed that the prior knee surgeries had been successful and that the knee was doing well. There is no clinical suggestion that the veteran required any significant convalescence from the December 1991 video arthroscopy. Consequently, a 100 percent evaluation for the veteran's left knee disorder beyond the end of February 1992 is clearly not warranted. Id. Since the veteran does not mention any outpatient treatment for his left knee after December 1991, remanding this case to obtain outpatient records after December 1991, as requested in April 1993, is unnecessary, especially in view of the disability picture documented in early 1992. ORDER A rating in excess of 30 percent for postoperative left knee replacement is denied. Extension of a temporary total rating beyond the end of February 1992, arising from hospitalization and surgery in January 1991, is denied. J. J. SCHULE 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. (CONTINUED ON NEXT PAGE) 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.