BVA9501820 DOCKET NO. 93-20 171 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased evaluation for a right knee disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from September 1964 to May 1967. This appeal arises from a July 1992 rating decision of the San Diego, California, Regional Office (RO) which denied an increased evaluation for the veteran's right knee disability. The veteran testified before a hearing officer at the RO in March 1993. The veteran is represented in his appeal by Disabled American Veterans. The case is now ready for appellate review. The Board notes that, in his substantive appeal, the veteran expressed disagreement with ratings subsequent to 1983. Additionally, he stated that he now has developed a resulting arthritic condition in his right ankle. These issues are referred to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased evaluation for his right knee disability which has increased in severity. He asserts that it is more disabling than is represented by the 20 percent rating assigned to the disability, and seeks a 30 percent rating. He contends that he has severe arthritis, cannot walk distances due to sharp pain and swelling, and that his physical activities and employment opportunities are limited due to pain, and tasks requiring lifting, bending and standing. 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(s). 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 supports a 30 percent evaluation for the veteran's right knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right knee disability is productive of severe impairment. CONCLUSION OF LAW The schedular criteria for a 30 percent evaluation for the veteran's right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.10, 4.40, Part 4, Diagnostic Codes 5003, 5257, 5260, 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. The history of the veteran's right knee disability is set out in the medical records contained within the claims folder. The service medical records reveal that in January 1966, the veteran was struck by a car while riding a motorcycle and sustained an open fracture of the right tibia with dislocation, torn medial collateral ligament and avulsed medial semilunar cartilage of the right knee. The veteran underwent an open reduction of the fracture, fixation, open reduction of dislocation, and excision of the semilunar cartilage. He was discharged to light duty in June 1966. In February 1967, a medical board found instability of the right knee due to trauma; the veteran was subsequently discharged due to the right knee disability. At a VA examination in November 1967, there was full range of motion, positive Drawer test on the right side, and some instability of the right collateral ligament. Based upon the evidence of record, service connection for impairment of the right knee was established in an April 1968 rating decision and a 30 percent evaluation was assigned, effective from May 16, 1967. In January 1983, a VA examination revealed a healed fracture of the proximal end of the right tibia with 3 embedded pins by x-ray with moderate degenerative arthritis of the knee and narrowing of the medial joint line. A medical statement from Gerald D. Falk, M.D., based upon a January 1984 evaluation, indicated the veteran complained of pain in the right knee, had range of motion from 10 to 140 degrees, patellofemoral crepitus, anterior medial line crepitus, trace medial collateral ligamentous instability, trace anterior cruciate instability, and slight anteromedial rotary instability. In April 1984, the RO reduced the right knee evaluation to 20 percent, effective from June 1, 1983. In October 1984, the Board confirmed the 20 percent evaluation assigned to the right knee disability. Medical records from Norman Kane, M.D., reveal that in November 1987, the veteran underwent a right knee arthroscopy with extensive debridement of the articular surface of the patella, chondroplasty of the medial femoral condyle and medial tibial plateau, resection of tears of the remnants of the medial meniscus, resection of small tear of the lateral meniscus, shaving of the articular surfaces of the lateral femoral condyle and tibial plateau, and extensive synovectomy. Follow-up visits reveal the veteran did well and was discharged from care in January 1988. The veteran underwent a VA examination in March 1988. The veteran indicated that the locking had disappeared but that he still had occasional swelling and discomfort. The veteran had range of motion of the right knee from 10 degrees to 100 degrees. There was instability of the medial collateral ligament and subpatellar crepitus in the right knee joint. The examiner could not detect any locking. The diagnosis was degenerative arthritis of the right knee joint, secondary to open fracture, tibial plateau with depression, residual impairment including medial collateral ligament instability and limitation of range of motion. In April 1988, the RO assigned a 100 percent evaluation for convalescence from November 4, 1987, returning to 20 percent on January 1, 1988. In March 1992, the veteran was seen by Dr. Kane. Physical examination revealed range of motion from 15 to 105 degrees. The collateral ligaments were intact. There were large prominences medially and laterally and crepitus with range of motion. An X- ray study was interpreted as showing significant osteoarthritic changes of all three compartments. The diagnosis was severe osteoarthritis of the right knee. Dr. Kane recommended a future total knee replacement. In March 1993, the veteran testified before a hearing officer at the RO regarding the right knee. He testified that: he has daily swelling aggravated by cold, damp weather and walking more than a block; he takes 400 milligrams of Motrin 3 to 4 times daily; he wears an elasticized sleeve; he occasionally uses a cane; he walks with a constant limp; he avoids physical activity at work and prefers to contact people by telephone; he has used orthotic devices for the past 18 or 20 years; he has crepitus; his knee gives out a couple of times a week; the knee locks up on him if he walks longer than a block; he limits his physical activity to swimming; the pain wakes him up at times; and that his knee is much worse now than after the arthroscopy. A VA orthopedic examination was conducted in April 1993. The veteran indicated that he is a budget analyst. He complained of pain walking one block, and discomfort attempting to kneel, squat or climb stairs. He wears a neoprene sleeve intermittently and takes Motrin for relief. He uses a cane on prolonged walking. The veteran was able to take a few steps on his heels or tiptoes and walked with a limp of the right leg. There was atrophy of the thigh. There was no swelling, effusion, or deformity. There was 3+ crepitus with patellar compression and knee flexion. On stressing the cruciates, the right knee exhibited a 1+ anteroposterior instability, 1+ Lachmann sign, and negative Mcmurray sign. The veteran had flexion to 110 degrees and extension to 10 degrees. An X-ray study was interpreted as showing prominent degenerative changes of the right knee with severe narrowing of the medial compartment, moderate narrowing of the patellofemoral compartment, irregularity of the margins of the medial and lateral compartments, question of chondral calcification, residual hardware in the proximal tibia and productive degenerative changes. Pellegrini-Stieda syndrome was suspected and loose bodies noted. The diagnosis was status post open fracture and dislocation of the right tibia, requiring stabilization with pins, excision of the medial meniscus, and synovectomy; status post arthroscopic debridement of the knee, with limitation of motion and instability; tricompartmental osteoarthritic changes; arthritis of the right ankle with limitation of motion, and retained hardware of the right knee. The veteran was again seen by Dr. Kane in October 1993 who indicated that the veteran's symptoms had become worse; the veteran walked with an antalgic gait pattern and had severe osteoarthritis of the medial compartment. The physician continued to indicate that the veteran was a candidate for a total knee replacement. With respect to the veteran's claim for an increased rating, the Board points out that disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability as reflected by the current medical findings. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's Schedule for Rating Disabilities, codified in C.F.R. Part 4 (1993), which includes Diagnostic Codes that represent particular disabilities. The rating schedule provides a 30 percent evaluation for severe impairment of the knee and a 20 percent evaluation for moderate impairment of the knee as measured by the degree of recurrent subluxation or lateral instability. Diagnostic Code 5257. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion for the specific joint involved. when the limitation of motion for the specific joint involved is noncompensable, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Diagnostic Code 5003. Under Diagnostic Code 5260, a 30 percent rating is provided for limitation of flexion of the leg to 15 degrees and a 20 percent rating for flexion limited to 30 degrees. Under Diagnostic Code 5261, a 40 percent rating is provided for extension of the leg limited to 30 degrees, a 30 percent rating where extension is limited to 20 degrees, and a 20 percent rating where extension is limited to 15 degrees. The evidence of record supports a 30 percent rating for the veteran's right knee disability for severe impairment of the knee, when one considers benefit of the doubt. While severe instability itself is not shown, the panoply of symptoms and findings suggests severe functional impairment when one considers pain. The veteran's right knee disability is manifested by pathology inclusive of instability, crepitus, positive Lachmann sign, decreased range of motion, atrophy of the right thigh, severe tricompartmental osteoarthritis, and complaints of pain and locking. The veteran wears a neoprene sleeve and uses a cane occasionally. Accordingly, based on the current degree of disability shown by the objective medical evidence of record documenting severe impairment of the knee, a schedular rating of 30 percent is warranted. The 30 percent rating is the highest evaluation possible under Diagnostic Code 5257. Therefore, we have considered whether his right knee disability may qualify for a higher evaluation under other applicable Diagnostic Codes. The veteran has also demonstrated degenerative changes of the knee which are rated according to the degree of limitation of motion. Diagnostic Codes 5003, 5260, 5261. However, the veteran's limitation of motion does not provide support for a rating higher than his current 30 percent evaluation. Therefore, application of those diagnostic codes would not result in a different result. We find there is no basis for a rating above 30 percent. In evaluating service-connected disabilities, the Board considers functional impairment due to pain as mentioned above. We attempt to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. However, functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The effect of pain due solely to the veteran's right knee disability is, however, already contemplated within the grant of an increase to 30 percent for severe impairment of the right knee. There is no indication that pain causes functional loss of the right knee greater than that contemplated in the assigned evaluation. We have considered the provisions of 38 C.F.R. § 3.321(b)(1) regarding the assignment of an extraschedular evaluation for the veteran's right knee disability, however, it is not found that this provision is applicable because the veteran's right knee disability is not so unusual or exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular rating standards. ORDER A 30 percent evaluation for a right knee disability is granted, subject to the rules and regulations governing the payment of monetary benefits. E. W. SEERY 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 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.