BVA9500297 DOCKET NO. 93-10 602 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for postoperative right anterior cruciate ligament reconstruction, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Darryl A. Joe, Associate Counsel INTRODUCTION The veteran had active duty for training from May 14, 1991, through November 21, 1991. This appeal arises from rating actions in November 1991 and April 1992 by the St. Louis, Missouri Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied the veteran's claim for a disability rating in excess of 10 percent for residuals of anterior cruciate ligament repair of the right knee. The Board of Veterans' Appeals (hereinafter the Board) acknowledges that the November 1991 rating action also denied the veteran's claim for eligibility for vocational rehabilitation benefits on the ground that his right knee disorder was evaluated as less than 20 percent disabling. Thereafter, the veteran submitted a timely notice of disagreement with the rating action denying him basic eligibility for vocational rehabilitation benefits. The RO subsequently issued a statement of the case and a supplemental statement of the case, both of which addressed the veteran's claim for an increased rating for his service-connected right knee disorder, but failed to include the pertinent law and VA regulations regarding his claim for vocational rehabilitation benefits. The Board does not find that the issue of entitlement to vocational rehabilitation benefits is inextricably intertwined with the issue noted on the cover page of this decision. Therefore, we will proceed with appellate consideration of the veteran's claim for an increased rating for his postoperative right knee disorder. However, in light of the above, we will refer the issue of eligibility for vocational rehabilitation benefits to the RO for proper consideration, with directions for the issuance of a statement of the case, including all pertinent law and regulations, on this matter. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts, essentially, that the symptoms associated with his postoperative right knee disorder warrant a disability evaluation in excess of the 10 percent rating currently assigned. He asserts that he is unable to work because of the knee disorder. 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 evaluation for a right knee disorder. 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 disorder is currently manifested by complaints of weakness in the right knee and tenderness along the graft site, and no more than slight limitation of motion in the knee. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a right knee disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, and Part 4, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for postoperative residuals of anterior cruciate ligament reconstruction of the right knee has been in effect since November 1991, when a 10 percent evaluation was assigned to the veteran's disability by a rating decision in April 1992. This was done under the provisions of Diagnostic Code 5257 of the VA's Schedule for Rating Disabilities (Rating Schedule). That rating was based primarily on the veteran's service medical records and the report of a VA examination in January 1992. The service medical records show that the veteran injured his right knee playing basketball while on active duty for training in 1991. He underwent surgery in July 1991 to repair the anterior cruciate ligament in the right knee. The records further indicate that his convalescence continued for several months, with satisfactory recovery reflected by near normal range of motion in the right knee. Notwithstanding his progress, a Medical Evaluation Board decided, in October 1991, that the veteran's right knee disorder rendered him physically unfit for duty. The report of the January 1992 VA examination reflects the veteran's complaints of weakness in the tibial region of the right knee. He also indicated that he experienced some tenderness over the graft site in that region. It was noted that the veteran ambulated with a limp on the right side. Orthopedic examination revealed a 2 inch lateral scar on the right knee and a 4½ inch anterior midline scar on the same knee. The examiner observed that the veteran was tender over the tibial graft site. There was 1 inch atrophy of the right calf and 1/2 inch atrophy of the right thigh. There was no ligamentous laxity. It was further observed that the veteran demonstrated range of motion from 0 to 120 degrees in the right knee. X-ray study was completely within normal limits, with the exception of metallic devices for ligament repair. The diagnostic impression was postoperative ligament damage of the right knee resulting in residual disability. The examiner noted that the veteran was "still in his healing phase," subsequent to the surgery. The only other evidence submitted by the veteran in support of his claim for an increased rating were records dated from June 1991 through June 1992. This evidence is mostly comprised of reports of the results of kinetic testing of the right knee during the time frame noted above. Also included among these reports was a statement prepared in June 1992 by [redacted], Head Athletic Trainer at Southeastern Louisiana University. Mr. [redacted] reported that the veteran, who worked with Mr. [redacted] in the university's training room, had been enrolled in a rehabilitation program since November 1991. Mr. [redacted] further indicated that he personally supervised the veteran's workouts on the Cybex II, and his isokinetic testing had shown improvement, although he still complained of weakness in the right knee. In evaluating the veteran's request for an increased rating for his service-connected right knee disorder, the Board considers the medical evidence of record and compares the medical findings to the criteria in the Rating Schedule. Under the applicable schedular criteria, an assignment in excess of 10 percent for the veteran's service-connected right knee disorder requires a showing of moderate impairment marked by recurrent subluxation or lateral instability. 38 C.F.R. Part 4, Diagnostic Code 5257. In this regard, we have considered the entire clinical record and taken cognizance of the veteran's complaints. Review of the record in this case reveals that the veteran has submitted reports of isokinetic testing which, apparently, is part of his physical therapy regimen. However, these reports do not include any conclusions, findings, or diagnoses indicative of moderate impairment marked by recurrent subluxation or lateral instability; thus, an increased evaluation under Diagnostic Code 5257 is not warranted. In reaching this conclusion, we accord significant weight to the report of VA examination in January 1992. The findings contained therein indicate no more than slight limited motion in the right knee. Although the veteran walked with a right limp, he demonstrated no evidence of laxity. The examiner commented, significantly, that the veteran was still in the healing phase, post-surgery. The Board finds that the objective evidence of record does not show that the veteran's right knee symptoms more nearly approximate the criteria set forth for the next higher rating under Diagnostic Code 5257, so as to warrant assignment of a rating in excess of 10 percent. 38 C.F.R. § 4.7. Rather, we find that the clinically documented findings are entirely consistent with the 10 percent rating assigned under Diagnostic Code 5257, for slight impairment associated with postoperative residuals of anterior cruciate ligament repair in the right knee. Likewise, there is insufficient limitation of right knee motion so as to warrant a higher evaluation under Diagnostic Code 5260, which would require limitation of flexion to 30 degrees, for a 20 percent rating, or Diagnostic Code 5261, which would require that extension of the leg be limited to 15 degrees. In determining functional disability, the VA has a duty to include an evaluation of the veteran's pain. 38 C.F.R. § 4.40. This regulation instructs that dysfunction due to pain must be supported by adequate pathology and visible behavior of the claimant. Although the veteran complains of tenderness along the graft site of his right knee, the record does not show that he is functionally impaired by his right knee disability to a degree that the present rating is inadequate. In fact, the results from the July 1992 VA examination indicate that he had essentially full range of motion of the right knee. Moreover, Mr. Goodman has indicated that the veteran is enrolled in a rehabilitation program for the right knee, and has shown improvement in his isokinetic exercises. We believe that this tends to show that the veteran's service-connected right knee disorder does not warrant an increased evaluation on the basis of functional loss. Furthermore, the Board determines that a higher evaluation is not warranted on an extraschedular basis, pursuant to 38 C.F.R. § 3.321(b). It has not been shown by objective evidence that the veteran's right knee disorder has caused marked interference with employment, the veteran's complaints notwithstanding, or has necessitated frequent periods of hospitalization. We have also considered the doctrine of reasonable doubt, but we find that the record does not provide an approximate balance of negative and positive evidence on the merits. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased evaluation for his service- connected right knee disorder. (CONTINUED ON NEXT PAGE) ORDER An increased evaluation for residuals of postoperative residuals of a right knee disorder is denied. N. R. ROBIN 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.