BVA9505232 DOCKET NO. 92-22 233 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased evaluation for a right knee disorder, currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 to November 1945 and is reported to have also served from April 1952 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) from a July 1990 rating decision by the Department of Veterans' Affairs (VA) Regional Office and Insurance Center (AOJ) in Philadelphia, Pennsylvania, which denied an increased evaluation for a right knee disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that his right knee disorder has been getting worse with the passage of time. He believes that the VA physician who examined him was in error in the measurement of the range of motion in the right knee. The veteran also states that, because of this disability, he was unable to continue in his job as a security officer and had to quit in January 1989. He points out that he now wears a leg brace, which he believes indicates an increase in the severity of his disability. 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 evidence supports an increased evaluation for the right knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. A right knee disorder is currently manifested by complaints of pain, with moderate tenderness in the medial and lateral aspects, limitation of motion, both on flexion and extension, slight genu varus, and slight laxity of the medial cruciate ligament. CONCLUSION OF LAW The schedular criteria for a 20 percent disability evaluation for a right knee disorder have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection was initially established for a shrapnel wound of the right knee by a rating decision dated in January 1946, effective from November 1945, at an evaluation of 20 percent. In February 1948, based upon a medical examination, the evaluation for an injury to the right knee with arthritis was reduced to 10 percent, effective from April 1948. A notation in an April 1961 rating decision noted that monthly payments of compensation for residuals of a right knee wound had been restored at an evaluation of 10 percent, effective February 1961, after having been discontinued in April 1952 when it was learned that the veteran had reenlisted. In February 1990, the veteran submitted additional evidence with which to reopen his claim for a right knee disorder. In July 1990 and in February 1991, the AOJ again confirmed its 10 percent evaluation. Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1993), those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In this regard, the Board will consider principally the veteran's medical history beginning in 1988, prior to the reopening of his claim in February 1990. At an orthopedic examination in October 1988, the veteran gave a history of complaints of pain in both knees, the left more than the right. The veteran stated that he had some arthritis, which caused pain in his hips and in his hands. He also complained of swelling in his joints and that his knees felt weak and gave out on him. The physical examination revealed that the veteran was able to get up without any assistive devices. He walked without orthotics, although he leaned to the left side. An examination of the knees revealed genu varum deformity, more on the left knee than on the right knee. He had some tenderness in the medial aspect of both knee joints, especially the left one. He had full range of motion in both knees, accompanied with discomfort. Crepitus was heard during range of motion of both knees. In February 1990, at an orthopedic examination, the veteran reported complaints of pain in both knees, the left more than the right. He stated that he had had to walk about 11 miles each shift on his job as a security guard and that his employer had supplied knee supports. Marked genu varum bilaterally was found. There was marked, but stable, osteoarthritis. The examiner suggested that the veteran continue physical therapy and wear his own knee supports. At a compensation and pension examination in September 1991 the veteran stated that he had been having pain in the right knee aggravated by prolonged standing and prolonged ambulation and that the pain had increased for the past few years. He said he had been using a cane for three years and took Tylenol tablets for pain as needed. He had been using a right knee-ankle-foot orthosis for a year. A physical examination showed that the veteran could ambulate with the use of a cane, but with a slight antalgic gait on the right. The right knee showed no apparent swelling. There was a moderate tenderness in the medial and lateral aspect of the right knee. The range of motion of the right knee showed a flexion of 100 degrees; it lacked 10 degrees to full extension. There was a slight genu varum of the right knee and a slight laxity of the medial cruciate ligament. The diagnostic impression was residuals of a right knee injury with arthritis. In evaluating service-connected disabilities, the Board looks to functional impairment and attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the medical findings contained in the claims file to the criteria in the VA Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1994); Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Board notes that the veteran has had an uneven work record due to paranoid schizophrenia, for which he is currently evaluated at 70 percent disabled. He had been compensated for individual unemployability from January 1968 to April 1981. He retired from his most recent employment as a security guard in January 1989 due to health problems. The veteran has most recently been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, relative to recurrent subluxation or lateral instability. Under this code, a severe impairment warrants a 30 percent evaluation, a moderate impairment a 20 percent evaluation, and a slight impairment a 10 percent evaluation. In reviewing the medical evidence, the Board notes that the laxity of the medial cruciate ligament was found on examination to be slight. Although the veteran appeared to be more comfortable wearing a brace, the examiner found that he was able to walk without the brace, using a cane. Because the veteran suffers knee pain, has been noted to have a genu varum deformity and an antalgic gait, with laxity of the medial cruciate ligament, and some limitation of motion of the leg, the Board finds that there is a question as to whether his knee impairment is slight or moderate. In such situation, 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. See 38 C.F.R. § 4.7 (1994). Since a review of the evidence shows that the veteran's right knee disability more closely comports with a moderate impairment, an evaluation of 20 percent is appropriate. The Board has also considered 38 C.F.R. § 3.321(b)(1), which authorizes an increased evaluation on an extra-schedular basis, when a case presents such an exceptional or unusual disability picture 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. However, the facts of this case do not meet the criteria for extra-schedular consideration and a higher evaluation than 20 percent is not warranted. ORDER An increased evaluation of 20 percent for a right knee disorder is granted, subject to regulations governing the payment of monetary benefits. WARREN W. RICE, JR. 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.