BVA9507398 DOCKET NO. 92-00 495 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for service-connected residuals meniscectomy, right knee, currently rated as 30 percent disabling. 2. Entitlement to an increased disability rating for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Louis A. deMier, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from August 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) from March 1988 and December 1994 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The March 1988 decision denied the veteran's claims for increased disability ratings for service-connected residuals meniscectomy, right knee, then rated as 20 percent disabling, and for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, then rated as 10 percent disabling. In June 1992, the Board remanded the case for additional development. Subsequent to that development, the RO, in December 1994, granted an increased disability rating to 30 percent for service-connected residuals meniscectomy, right knee, effective from March 1987, and denied an increased disability rating for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, currently rated as 10 percent disabling. In June 1992, the Board noted that it did not appear from the claims file that the RO had notified the veteran of its January 1992 decision denying his claim for a total rating based on individual unemployability. The Board notes that it still appears from the claims file that the veteran has never received notification of that decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claims for increased disability ratings for his service-connected disorders. 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 claims for increased disability ratings for service-connected residuals meniscectomy, right knee, currently rated as 30 percent disabling, and for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, currently rated as 10 percent disabling. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected residuals of a meniscectomy, right knee, are manifested by swelling, pain, some limitation in the range of motion, degenerative joint disease shown by x-rays, chondromalacia patella, right knee contracture, patellar tendinitis, and mediolateral instability. 3. The manifestations of the veteran's service-connected residuals of a meniscectomy, right knee, reflect a severe disability of the right knee. 4. The veteran's service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, is manifested by complaints of pain in the left testicle and by an engorged epididymis which was not painful to palpation upon examination. 5. The veteran's service-connected disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for the service-connected residuals of a meniscectomy, right knee, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5262 (1994). 2. The criteria for a disability rating in excess of 10 percent for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7524, 7525 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented well grounded claims for increased disability evaluations for his service-connected disorders within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). All relevant facts have been properly developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Increased Disability Rating for Service-Connected Residuals Meniscectomy, Right Knee. The veteran's current 30 percent disability evaluation for his service-connected residuals meniscectomy, right knee, is rated under criteria provided by the Schedule for Rating Disabilities for recurrent subluxation or lateral instability of the knee, and his rating contemplates a severe knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1994). Schedular ratings higher than 30 percent for a knee disability are provided only if there is ankylosis of the knee, if extension of the leg is limited to 30 degrees or more, or if there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, 5262 (1994). With regard to ankylosis, the Board notes that there is no evidence in the claims file that the veteran has ankylosis, or immobility, of the knee. All the medical examination reports reflect that the veteran has mobility of the right knee, although the reports differ on the range of mobility. There is also no evidence of nonunion of the tibia and fibula. Although the veteran wore a bandage and knee brace to his personal hearing in March 1990 and testified that he must wear it all the time, it is not noted on any of the medical reports and there is no medical evidence indicating that a knee brace must be worn for nonunion of the tibia and fibula. Therefore, the Board concludes that a higher rating on these bases is not warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262 (1994). With regard to the criteria for extension of the leg, a VA doctor on examination of the veteran's knee in October 1992 reported that the veteran had no limitation of motion. However, in May 1994, the RO received an orthopedic evaluation from a private doctor who noted marked arthralgia and limitation in range of motion. Specifically, the doctor noted that pain in the veteran's right knee was so severe that his extension was limited to 120 degrees when the normal range was 180 degrees. The Board notes that the doctor used a different scale for describing limitation of motion than is provided in the VA Schedule for Rating Disabilities. By VA standards, a fully extended leg, i.e., a leg sticking out straight with no bend in the knee from a sitting position, is described as 0 degrees, not 180 degrees. 38 C.F.R. § 4.71, Plate II (1994). By VA standards, a person should be able to flex the leg while in a sitting position to 140 degrees and extend it back to 0 degrees. Thus, it is difficult to compare the findings of this physician with those of the VA examiners. It is possible, however, that a limitation in extension described as 120 degrees by the private orthopedist would equate to a limitation in extension on the VA scale of about 60 degrees, which would warrant a disability rating higher than 30 percent because extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5261 (1994). Given the considerable discrepancy in the two examination reports with regard to extension of the right knee, the RO scheduled the veteran for another examination which was conducted in September 1994. The examiner found that the veteran "lack[ed] 15 degrees for complete extension." Under VA criteria, extension limited to 15 degrees warrants a 20 percent disability rating, a rating which is lower than the veteran's current 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5261 (1994). The percentage ratings provided in the Schedule for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1993). The criteria provided for disability ratings for disorders of the knee reflect a determination that the degree of impairment in earning capacity that is likely to result from a severe knee disorder, absent ankylosis, certain specified degrees of limitation of extension, or nonunion of the tibia and fibula requiring a brace, is adequately compensated by a 30 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5261 (1994). In this case, the Board notes that, with the exception of the report of the private doctor that might reflect a degree of limitation of extension supporting a 50 percent rating, the medical evidence in this case shows that the manifestations of the veteran's knee disorder best fit the criteria for the 30 percent disability rating. In this regard, the Board observes that, when weighed against the rating criteria for knee disabilities, some of the veteran's manifestations fall short of the requirements for the 30 percent rating. For example, with regard to the degree of flexion, the September 1994 VA examination report showed flexion limited to 115 degrees (the maximum normal range of flexion is to 140 degrees), and VA criteria requires that flexion be limited to 45 degrees or less to be compensable. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (1994). Similarly, upon VA examination in September 1994, there was swelling of the right knee, and the veteran provided a history of locking of the right knee with frequent falls and pain which increased when driving a car or walking to great extent. With regard to these manifestations, the highest rating provided for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is 20 percent. With regard to the effects of pain on the veteran's right knee, the Board notes that the United States Court of Veterans Appeals has held that the Board may not base its conclusions about the degree of disability "on a VA medical examination which fail[s] to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain . . . ." Voyles v. Brown, 5 Vet.App. 451, 453(1993), citing Quarles v. Derwinski, 3 Vet.App. 129, 140 (1992); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). Section 4.40 provides that it is "essential that the examination on which ratings are based adequately portray . . . functional loss" of the part of the body being examined with respect to the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40 (1994). In addition, section 4.45 states that in evaluating the disability of joints, which includes the right knee, factors to be considered include "[p]ain on movement." 38 C.F.R. § 4.45(f) (1994). Pain was noted by both the May 1994 private orthopedist and the September 1994 VA examiner. The Board finds that these reports, while differing somewhat in their descriptions of the degree and intensity of the veteran's pain, adequately portrayed its effect with regard to function loss of the right knee. Both physicians noted the degenerative changes of the right knee shown on an April 1994 private x-ray report, and both physicians diagnosed patellar chondromalacia, a disorder which the private physician noted is markedly painful. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1994). The Board notes that the 30 percent disability evaluation contemplates a severe knee disability with severe pain. However, as noted above, absent ankylosis at certain angles, a specific degree of limitation of extension, or nonunion of the tibia and fibula requiring a brace, the rating schedule does not comprehend that a severe knee disability will result in an impairment in earning capacity to a degree greater than that compensated by the 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5226-5261 (1994). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1994). "The governing norm in these exceptional cases is: A finding that the 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." 38 C.F.R. § 3.321(b)(1) (1994). In this regard, the Board notes that the private doctor's May 1994 orthopedic evaluation differs from the other medical and lay evidence in the claims file with respect to the description of the degree of impairment which the veteran experiences due to pain. In his report, the private doctor noted a history provided by the veteran that "[i]n rainy weather, pain is so severe that he can not sleep even by using analgesics and sedative medications of different kinds. On walking fairly long distances he has to stop short periods of time to rest before he can finish to the end of his wa[lk]. Frequently his knees get markedly swollen and tender to palpation, red and hot. Pain bothers him daily varying in intensity but most of the times it is so severe that he is forced to stay home resting." A social and industrial survey was conducted in October 1992 in order to obtain information from the veteran, his wife, and his neighbors about the extent of his physical activities. The survey contains conflicting reports about the extent of the veteran's activities. His wife stated that he feeds some chickens they have in the back yard, watches television, listens to the radio, and, when feeling up to it, drives his car. The veteran described himself as a person who cannot involve himself in heavy tasks. Four neighbors provided conflicting reports as to the extent of the veteran's physical activities, two stating that he does not engage in any tasks at all and two reporting that they have seen him engaged in moderate to heavy activities, such as cutting bushes with a machete, cutting tree branches, cleaning the yard, working on the septic tank, and driving his car. In September 1993, the VA examiner who examined the veteran in October 1992 noted in an addendum to his October 1992 examination report that "[t]he evidence does not show that this veteran's right leg condition is severe enough to produce unemployability. The presence of pain does not seem to produce marked handicaps in a man who, according to some of his neighbors is very active and is often involved in strenuous activities." The Board finds the private doctor's evaluation less probative than other evidence in the claims file with respect to whether the veteran's right knee disability warrants extra-schedular consideration. First, the Board notes that the private doctor did not limit his report to arthritis of the right knee but instead described limitations due to "severe arthritis in all [the] joints." Second, although the doctor noted extreme limitation of extension on the day he examined the veteran, this finding did not comport with findings of no limitation of motion by a VA examiner in October 1992 and of limitation of extension of 15 degrees found by another VA examiner in September 1994. In this regard, the private examiner noted that the severe pain the veteran experiences due to his arthritis is experienced "on and off." Such occasional exacerbations are contemplated by the 30 percent disability rating and are not equivalent to the severe exacerbations warranting frequent periods of hospitalization that are contemplated by the regulations in exceptional cases that would warrant referral for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (1994). With regard to periods of hospitalization, the Board notes that the veteran had cleansing and debridement of the knee and arthroscopy in 1978, 1982, 1987, and 1989. The Board finds that hospitalization for these procedures four times over the course of a decade is not "frequent" enough to markedly interfere with employment and render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). In light of the foregoing, the Board concludes that the RO's failure to consider or to document its consideration of this case for extra-schedular evaluation was no more than harmless error. Finally, the Board observes that the RO received evidence in March 1990 reflecting that the veteran began receiving benefits from the Social Security Administration for a period of disability that began in May 1980. The veteran testified at his personal hearing that these benefits were awarded for his knee disability. However, the nature of the disability for which benefits were awarded is not clear from the documents submitted. In this regard, the Board notes that in addition to his service-connected knee and testicular disorders, the veteran has claimed that he suffers from an anxiety disorder, and there is evidence in the claims file of a back disorder. The Board finds that the documents submitted regarding benefits received from the Social Security Administration do not provide specific or current information about functional impairment caused by the veteran's right knee disorder, and therefore the documents are not probative of whether the veteran's knee disorder presents such an exceptional disability picture as to warrant extra-schedular consideration under VA regulations. Cf. Gary v. Brown, No. 92-1483, slip op. at 4-5(U.S. Vet. App. Dec. 14, 1994) (where VA medical examiners have addressed industrial and functional impairment caused by a disability, VA's duty to assist, unlike statutory requirements by which the Social Security Administration is bound, does not extend to developing evidence to demonstrate that there are specific employment opportunities available to a veteran in order to support a denial of a claim based on individual unemployability). II. Increased Disability Rating for Service-Connected Testis, Right, Removal of; Epididymis-Orchitis and Varicocele, Left. Under the criteria provided by the Schedule for Rating Disabilities, the removal of one testis warrants a noncompensable rating unless the other testis is shown to be nonfunctioning. 38 C.F.R. § 4.115b, Diagnostic Code 7524, Note (1994). Chronic epididymis-orchitis, unless caused by tubercular infections, is rated as urinary tract infection. 38 C.F.R. § 4.115b, Diagnostic Code 7525 (1994). The service medical records do not reflect a tubercular infection. A 10 percent rating is warranted for urinary tract infection involving long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. The next higher or 30 percent evaluation is warranted for recurrent symptomatic infection requiring drainage or frequent hospitalization (greater than two times a year), and/or requiring continuous intensive management. The veteran has been assigned a 10 percent evaluation for epididymis-orchitis and varicocele of the left testis since 1955. There is no evidence in the claims file of infection requiring drainage or frequent hospitalization or continuous intensive management required for the 30 percent evaluation to be assigned. Upon VA examination in October 1992, the veteran reported occasional pain in his left testicle. The doctor found normal left testis with engorgement of the epididymis, painless. In a September 1993 addendum to the October 1992 examination report, the doctor noted, "His left testicle is normal and the left epididymis is engorged but not painful to palpation." A testicular ultrasound test conducted in February 1994 reflected that the left testicle "appeared normal in size with a focal hypoechoic area in the posterior aspect measuring approx[imately] 1.3 [by] 0.8 [centimeters] which may represent a focal inflammatory process. The left epididimys (sic) may be thickened with inhomogenous echo pattern. There is no evidence of hydrocele or varicocele." Although this report is consistent with the diagnosis of epididymis-orchitis, it does not reflect findings that would warrant an increased disability rating under the rating criteria. With regard to extra-schedular consideration, the Board observes that there is no evidence in the claims file that this disorder 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. 38 C.F.R. § 3.321(b)(1) (1994). The Board notes that in the September 1993 addendum to the October 1992 VA examination report, the examiner noted that there was no evidence of significant limitations that would interfere with the veteran's ability to be gainfully employed. Therefore, the Board concludes that the RO's failure to consider or to document its consideration of this case for extra-schedular evaluation was no more than harmless error. ORDER An increased disability rating for service-connected residuals meniscectomy, right knee, is denied. An increased disability rating for service-connected testis, right, removal of; epididymis-orchitis and varicocele, left, is denied. MARY GALLAGHER 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.