BVA9505037 DOCKET NO. 92-19 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for chondromalacia of the patella of the right knee with early degenerative arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from March 1978 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO). This claim was remanded by the Board for further development by decision in August 1993. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's service-connected right knee disability is more disabling than currently evaluated. It is asserted that the veteran experiences severe pain if she walks up stairs, as well as giving way. 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 a preponderance of the evidence is against an evaluation greater than 10 percent. 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 service-connected right knee disability is manifested by range of motion from 5 degrees' extension to 110 degrees' flexion, minimal degenerative changes, slight instability, and reported pain and give way with no more than slight functional impairment demonstrated. CONCLUSION OF LAW An evaluation greater than 10 percent for the veteran's service- connected right knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Codes 5257, 5260, 5261 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The report of a July 1984 service medical board states that the veteran developed right knee pain following an injury when she tripped in a foxhole in April 1978. Thereafter, she reported persistent pain with running. In 1978, an arthrotomy was performed which revealed that the menisci was intact, but there was significant chondromalacia involving the medial patellar facet. In April 1984, an arthroscopic examination was performed. The menisci and cruciate ligaments were normal. There was substantial softening of the articular cartilage of both the medial and lateral tibial plateaus. The femoral surfaces of the medial and lateral compartments showed some mild softening, but they were firm enough to be considered within normal limits. The patellofemoral joint showed evidence of the previous chondroplasty with only a very thin layer of hyaline cartilage coating the medial patellar facet. The medical board's diagnoses were early degenerative arthritis, right knee, chondromalacia, patella, right knee, Grade III. The report of an August 1985 VA examination indicates that the veteran's gait was normal. The right knee had full range of motion, but there was tenderness over the anteromedial, midmedial, and posteromedial areas of the joint. There was a 3-inch scar from the first arthrotomy and a small scar from the second arthrotomy in 1984. The veteran reported that she was unable to exercise the knee without severe pain, and stated that it would swell on prolonged use. X-rays of the right knee were negative. The diagnoses included degenerative arthritis of the right knee, progressive, and chondromalacia of the patella of the right knee, Grade III. A rating decision in September 1985 granted service connection for chondromalacia of the patella of the right knee with early degenerative arthritis, and assigned a 10 percent evaluation from September 7, 1984. With the exception of a temporary total evaluation from March 16, 1990, to April 30, 1990, following a surgical procedure on the right knee, the 10 percent evaluation has remained in effect until the present time. Private clinical records from Barstow Community Hospital reflect that an arthroscopy of the veteran's right knee with abrasive chondroplasty of the patella, excision of the medial patellar plica and release of adhesions, and open lateral release were accomplished. The postoperative diagnoses were chondromalacia of the right patella, Stage II, lateral subluxation of the patella, and hypertrophic, medial and patellar plica, fibrotic type. The report of a February 1990 VA examination states that the veteran complained of bilateral knee pain, greater on the right. She stated that the pain was not always that severe, but her leg would often give out when walking to the point where she would fall. She reported that her right leg would go numb up to the thigh on occasion. Range of motion of the right knee was accomplished from 0 degrees in extension to 135 degrees in flexion. Drawer and Lachman's signs were negative. Lateral instability was found on the right. X-rays of the right knee were essentially unremarkable with some apparent early minimal degenerative changes. The impression included degenerative arthritis of the right knee. Statements from Rama T. Pathi, M.D., the private surgeon who performed the March 1990 surgery, dated in June and November 1990, confirmed this diagnosis with the June 1990 statement indicating that the veteran had severe instability and subluxation with respect to the right knee. The report of a January 1992 VA examination states that the veteran complained of the whole right leg falling asleep from the knee to the thigh with a pin and needle sensation. She also reported that the knee was unstable, although it had a normal range of motion. The veteran did not use stairs because of discomfort in the knees. If she sat down, she had to keep her legs stretched out. She indicated that she had to give up bowling and computer networking because she had to get up and move around. Examination revealed a 2 3/4-inch scar and a 1-inch scar on the right knee. There was tenderness on range of motion testing in the right knee, with range of motion from 5 degrees in extension to 110 degrees in flexion. Drawer sign and Lachman's sign were negative. There was lateral instability. X-rays of the right knee revealed minimal degenerative changes. The impression was internal derangement, right knee, postoperative. The report of an October 1993 VA examination, by the same examiner who performed the February 1990 and January 1992 VA examinations, states that the veteran complained of both knees giving out a lot. She indicated that she fell a lot, and had cramps in the right thigh. There was a Y-shaped incision on the anterior aspect of the right knee with a vertical medial scar measuring 4 inches in length and an oblique 5-inch scar arriving laterally and joining the vertical scar about half way down. Drawer and Lachman's signs were negative. On examination for lateral instability, the right knee was stable. The examiner indicated that there was slight, if any, instability in the right knee and the examiner believed that there was no instability in the right knee, laterally. The circumference of the thighs was equal and the circumference of the right calf was found to be 14 1/4 inches with the circumference of the left calf being 14 1/2 inches. X-rays revealed no significant interval change since the February 1990 X-ray. The impression was residuals of multiple surgical procedures, both knees. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. The appellant has indicated that she experiences instability, give way, and pain in the right knee. Some tenderness on range of motion has been demonstrated clinically. The appellant has indicated that she continues to have normal range of motion in the right knee, and clinical examination has shown the most restricted range of motion in the right knee to be from 5 degrees in extension to 110 degrees in flexion. Full range of motion of the right knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71 (1994). Thus, the appellant retained most of the range of motion in her right knee. With respect to instability of the right knee, clinical evidence, both VA and private, reflects instability of the right knee in 1990 and 1992. The report of a VA examination in October 1993, conducted by the same physician who conducted the VA examinations in 1990 and 1992, reflects, in response to the specific request to comment on the severity of instability of the right knee, that the examiner believed there was no instability of the right knee. A little used part of the musculoskeletal system may be expected to show evidence of disuse, such as atrophy. Measurements during the most recent examination do not indicate more than minimal atrophy of the right leg. The thighs were equal in circumference, with the calf measuring only one-quarter of an inch smaller on the right than the left. Therefore, on the basis of the analysis of the evidence of record, a preponderance of the evidence shows that, while the appellant experiences pain in the right knee, this pain produces no more than slight functional impairment on objective demonstration, including examinations and consideration of evidence of disuse. 38 C.F.R. § 4.40. Further, the Board finds that, in this case, the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the service-connected right knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (1994). The criteria for an evaluation greater than 10 percent have not been met or approximated. A 10 percent rating is warranted when flexion is limited to 45 degrees or extension is limited by 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or extension is limited by 15 degrees. With respect to recurrent subluxation or lateral instability, a 10 percent rating is warranted when it is slight, and a 20 percent rating when it is moderate. 38 C.F.R. Part 4, Codes 5257, 5260, 5261 (1994). Limitation of extension has never been indicated to be greater than to 5 degrees, and he retains flexion at least to 110 degrees. Therefore, an increased evaluation on the basis of limitation of range of motion of the right knee is not warranted. Although Dr. Pathi has characterized the veteran's right knee as having severe instability and subluxation, this characterization is not supported by clinical evidence demonstrated in three separate VA examinations. These examinations indicate, in 1990 and 1992, some instability in the right knee, but when specifically responding to the question as to the degree of instability and subluxation, the same examiner, in the report of the October 1993 examination, indicated that there was slight, if any, instability of the right knee and the examiner believed that there was no lateral instability of the right knee. Therefore, no more than slight impairment of the right knee has been demonstrated on the basis of either recurrent subluxation or lateral instability. ORDER An increased rating for chondromalacia of the right knee with early degenerative changes is denied. 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. 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.