BVA9503526 DOCKET NO. 93-05 803 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for postoperative residuals of injury to the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from June 1982 to August 1990. He had prior service in the U.S. Army National Guard from October 1981 to February 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision from the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO, among other things, granted service connection for postoperative residuals of injury to the right knee (right knee disorder) and assigned a 10 percent disability rating. The veteran disagrees with the assigned rating. The veteran testified at a RO hearing in August 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not assigning a higher rating for the right knee disorder. Specifically, the veteran asserts that his right knee is painful and severely disabling. He claims that his right knee "gives way" and "locks up" which makes it difficult to climb up and down stairs and causes right leg muscle atrophy. 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 veteran's claim for an increased rating for the right knee disorder. 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 right knee disorder is primarily manifested by subjective complaints of pain with objective evidence of full range of motion without instability, resulting in no more than slight knee impairment. 3. Moderate impairment of the right knee including recurrent subluxation or lateral instability or marked limitation of motion is not shown. 4. The veteran's disability does not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for residuals of postoperative injury to the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, including Codes 5299 through 5257 (1994). 2. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service medical records indicate that the veteran injured his right knee in 1984. In 1985 he suffered a right meniscus tear and in 1987 he underwent a right knee arthroscopy with medial meniscectomy and excision of small lateral meniscal tear. The service separation examination noted that the veteran underwent several right knee procedures in service. Following service the veteran was accorded a VA examination in May 1991. At that time the veteran complained that his right knee gave out when walking. He stated that he could not turn or twist his right knee without difficulty. The examiner reported that the right knee had full range of motion with no instability, no joint line tenderness, no creaking, and negative McMurray's. X-rays of the right knee revealed no significant pathology. The final diagnosis included status postoperative injury to the right knee. Based upon the service medical record findings and the VA examination report, the RO, in a July 1991 rating decision granted service connection for right knee disorder and assigned a 10 percent disability rating under Diagnostic Codes 5299 through 5257 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1994). That rating is still in effect today. In that same rating decision the RO denied entitlement to service connection for various disorders. However, the only issue appealed was entitlement to an increased rating for right knee disorder. 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 (West 1991); 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities. The regulations do not provide a specific Diagnostic Code for status postoperative injury to the right knee. However, when an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the function is affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1994). Knee impairment is rated under Diagnostic Code 5257 and was considered by the RO to be the code most analogous to the veteran's condition. A 10 percent rating contemplates slight knee impairment with recurrent subluxation or lateral instability. The next higher rating, 20 percent, requires moderate knee impairment with recurrent subluxation or lateral instability. The veteran testified at a RO hearing in August 1992. He complained that the right knee "locks" on him, that there was some shrinkage of the right leg, and that his right knee disorder caused him to stumble which caused terrible pain. The hearing officer found it necessary to schedule the veteran for a special VA orthopedic examination. On a November 1992 VA orthopedic examination the examiner reported that the veteran was ambulatory and not using any kind of ambulatory aid. On physical examination the examiner reported that the right knee showed full range of motion, no swelling, and no crepitation. He noted that the veteran had good right quadriceps power. The examiner reported that the veteran's medial collateral, lateral collateral, and posterior cruciate ligaments were intact. He noted that at the anterior cruciate ligament (ACL) the veteran had a positive drawer sign which he believed raised the possibility of a torn ACL. The examiner commented that veteran's options for treatment included reconstructive surgery or continuing strengthening quadriceps exercises every day. In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board acknowledges that the veteran had at least two right knee surgeries in service and currently experiences some pain associated with the right knee disorder. However, the veteran's pain is contemplated under the current rating. As noted above, the veteran is currently receiving a 10 percent schedular evaluation on the basis of slight impairment with associated recurrent subluxation or lateral instability of the right knee under Diagnostic Code 5257. The veteran's right knee disorder does not result in moderate impairment with associated recurrent subluxation or lateral instability such as to warrant a higher evaluation under Diagnostic Code 5257. In weighing the evidence of record in this case, the Board carefully considered the November 1992 VA examination report, as well as all of the evidence of record, in light of the veteran's contentions. The examiner who conducted the November 1992 VA examination of the right knee reported that the veteran had full range of motion, good quadriceps power, no swelling, and no crepitation. The examiner commented that the veteran may have had a torn right ACL, but there is no evidence of any restriction of motion, subluxation or instability, which would account for more than slight impairment of the knee. On the earlier VA examination conducted in May 1991, the examiner also reported full range of motion with no instability, joint line tenderness, or creaking. In addition, X-rays taken as part of the examination revealed no significant pathology. In support of his claim, the veteran reported that he had at times some difficulty with extension of the right knee. The Board finds the veteran's contention credible; however, the results of the recent physical examinations and range of motion tests do not demonstrate that the veteran's extension is limited to 15 degrees, which is required for an assignment of a 20 percent rating under Diagnostic Code 5261. Accordingly, the Board concludes that the service medical records and VA examination reports when taken as a whole do not reveal the symptomatology which would warrant a 20 percent rating for right knee disorder. The 10 percent rating currently assigned for the right knee disorder accurately reflects the degree of disability produced as a result of the service-connected disorder, including complaints of pain. The regular schedular standards are shown to be adequate to compensate the veteran's disabilities. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present 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). ORDER Entitlement to an increased rating for residuals of postoperative injury to the right knee is denied. JOAQUIN AGUAYO-PERELES 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.