BVA9502452 DOCKET NO. 93-09 047 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for chondromalacia of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from August 1986 to December 1991. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from an initial rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in November 1992, granted service connection for a left knee disability, and evaluated it as 10 percent disabling. While a hearing was scheduled for the veteran in April 1993, at his request, he failed to appear on the date designated therefor; thus, as there has been no request for rescheduling same, the Board will now proceed with its appellate consideration of this case. CONTENTIONS OF APPELLANT ON APPEAL The appellant expresses disagreement with both the "diagnoses" and "percentage" of his disability. His representative argues that there is objective medical evidence in the claims file which warrants assignment of an increased evaluation for the appellant's service connected 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 the appellant's claim for an increased evaluation for his service connected left knee disorder. FINDING OF FACT The appellant's left knee disability is manifested by moderate severity with painful crepitus, but no instability, subluxation or significant limitation of motion. CONCLUSION OF LAW Resolving the benefit of the doubt in the appellant's favor, the schedular criteria for an evaluation of 20 percent for a left knee disability has been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, and Part 4 Diagnostic Codes 5014-5257 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board has found the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been developed and no further assistance is necessary to comply with the statutory duty to assist. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). It is essential that each disability be viewed in relation to its history, and that medical examinations are accurately and fully described emphasizing limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (1993). Medical evaluation reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1993). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. The appellant's service medical records reveal that the appellant injured his left knee in February 1987. Complaints of pain persisted throughout the duration of the appellant's time in service. An examination of the left knee was conducted in May 1991. A history of pain and locking was noted. X rays in May 1991 revealed mild intrasubstance degenerative changes involving the posterior horn of the medial meniscus (no evidence of a meniscal tear), a suggestion of an anterior cruciate ligament sprain, sclerotic foci or bone islands within the femoral condyles correlated with the April 1991 plain film findings, no evidence of interarticulate loose body, and small effusion. Clinical entries dated later in May 1991 indicate a re-injury of the left knee and minium swelling, but no effusion. Crepitation was shown, but the knee was described as stable. Some decreased weight bearing was noted. In September 1991, the appellant was seen for a follow up visit to evaluate his left knee condition. The entry noted constant pain at the medial part of the knee under the patella. Swelling was noted reportedly within 3-4 days after physical training or after sitting for long periods. The knee had reportedly given away occasionally and had locked previously. An MRI was negative, and a bone scan was normal. On physical examination, range of motion of the knee was reported to be a normal 0 to 140 degrees, bilaterally. The left knee was described as stable in all planes. No swelling was shown. There was tenderness in the medial facet of the left patella. McMurray's and a pivotal shift test were negative. The impression was probable retro patellar pain syndrome. The service separation medical examination was conducted later in September 1991. The left knee was clinically evaluated as abnormal, since decreased flexion of the left knee to 100-110 degrees, due to medial patellar pain, was shown. The ligaments were described as stable. The pertinent diagnosis on completion of that examination was left post-traumatic knee pain, chronic, and medial patellar pain with instability. A VA medical examination was conducted in March 1992. By history, the appellant reported that he injured his left knee in February 1987, while skiing. The condition was treated conservatively over a long period of time and was thought not to require surgery, but the condition persisted and the appellant repeatedly complained of pain, was repeatedly examined, and had numerous X-rays taken. The appellant was discharged never having had surgery in service. The appellant complained that he could not run, and that when he did, the knee gave out or locked, and occasionally became swollen. He stated that if he just tapped at an area above his left patella, he had pain for 2 or 3 days, which he described as intense. VA medical examination of the lower extremities showed a definite shortening of the left limb as compared to the right, determined at the medial malleoli. The appellant's left pelvis was described as ½ to one inch lower than the right. His gait and carriage characterized as normal. Flexion of the left knee was to 135 degrees, compared to that on the right which was described as normal to 140 degrees. Extension was normal. There was normal hypo-extension passively. The patella on the left knee revealed crepitus in all areas of the patellar bed. The movements of the patella were painful. The appellant had a positive apprehension sign. Quadriceps on the left side were less well developed and more flaccid than on the right. Palpation of the left knee revealed tenderness of the medial joint space anteriorly and posteriorly. There was no swelling present and no evidence of locking. McMurray's and draw sign were negative. X-rays of the left knee showed no evidence of patellar thickening of the posterior aspect. Clinically, the appellant was shown to have chondromalacia of the left patella, and painful crepitus with strong positive apprehension sign. The diagnosis was moderately severe left chondromalacia of the patella. The RO in November 1992 awarded service connection for left knee retropatellar pain syndrome and rated the disorder as 10 percent disabling under the provisions of 38 C.F.R. Part 4, Diagnostic Codes 5014-5260. In the appellant's Notice of Disagreement he referenced preparing for a hearing. The record reflects that a hearing was scheduled in April 1993, but that the appellant did not appear at the time scheduled for his hearing. Neither the appellant nor his representative have explained his absence, nor has either requested another hearing. The Board notes that the most recent presentation by his representative in July 1993 reflects the belief that "additional oral argument at this stage of the appellate process would be redundant and serve no useful purpose." Chondromalacia of the knee is to be rated as osteomalacia, requiring the assignment of an evaluation based on limitation of motion of the affected joint, as degenerative arthritis. 38 C.F.R. Part 4, Diagnostic Code 5014 (1993). Limitation of flexion of the leg to 45 degrees warrants a 10 percent evaluation; a 20 percent evaluation is applicable where flexion is shown as limited to 30 degrees. 38 C.F.R. Part 4, Diagnostic Code 5260 (1993). Where extension of the leg is limited to 10 degrees, a 10 percent rating is applicable; where extension is limited to 15 percent, a 20 percent rating applies. 38 C.F.R. Part 4, Code 5261. In the alternative, the appellant's disability can be evaluated as other impairment of the knee, to include recurrent subluxation or lateral instability; when slight in nature, a 10 percent evaluation is applicable; when moderate in degree, a 20 percent disability evaluation is warranted, and when severe, a 30 percent evaluation is warranted 38 C.F.R. Part 4, Diagnostic Code 5257. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). At the outset, the Board notes that the appellant contends that his left knee disorder results in symptoms of pain and crepitus. The Board, in reviewing the evidence has observed that the clinical data demonstrate that the appellant has consistently exhibited both patellar pain and crepitus. It was also shown that the left quadriceps is less well developed than the right. The cornerstones for inquiry with regard to evaluating a disability such as the appellant's for rating criteria purposes are limitation of motion, subluxation, and instability, and based on the clinical findings of the most current VA examination, these were not shown. This is not to say that other symptomatology is inconsequential. The Board has considered the shortening of the left leg vis-a-vis the right leg and the fact that his left hip is ½ to one inch lower than his right hip, as noted in the March 1992 VA examination; however, the examiner did not implicate any relationship between the appellant's left leg length discrepancy and his service connected left knee disorder. Where 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). The Board is of the opinion that the disability picture presented in this case more nearly approximates the next higher rating. In reaching this decision, the Board has considered the doctrine of reasonable doubt, and considering the appellant's painful crepitus, his strong positive apprehension sign, and the fact that the evidence indicates that his left knee disability is moderately severe, it is believed that a 20 percent evaluation under Code 5257 is more appropriate. The evidence of record does not show that the appellant's disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Specifically, the left knee disability has not required frequent periods of hospitalization, nor has it been shown that it has produced marked interference in employment as to render impracticable the application of regular schedular standards. 38 C.F.R. § 3.321(b) (1993). ORDER An increased evaluation for a left knee disability is granted to 20 percent. J. F. GOUGH 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.