BVA9502162 DOCKET NO. 92-21 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to an increased rating for post-operative residuals of a ruptured left patellar tendon, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from February 1983 to July 1991. This matter was before the Board of Veterans' Appeals (Board) in October 1993, when it was remanded for additional development. In its October 1993 action, the Board directed the RO to adjudicate a claim of entitlement to a total rating based on individual unemployability--an issue that had been raised during a June 1992 hearing on appeal. This issue was adjudicated by the RO in May 1994 and was addressed in a supplemental statement of the case issued in June 1994. However, an appeal of the May 1994 denial of this issue was not timely filed. See 38 C.F.R. § 20.302(c) (1993) (a substantive appeal must be filed within 60 days of the date of mailing of the supplemental statement of the case in order to perfect an appeal as to any issue not previously addressed in a statement of the case). Inasmuch as the veteran's claim for an increase is not "inextricably intertwined" with a claim for a total rating based on individual unemployability, the Board has limited its consideration to the previously developed claim for an increase. See Kellar v. Brown, 6 Vet.App. 157, 162 (1994); Holland v. Brown, 6 Vet.App. 443, 446-47 (1994); Parker v. Brown, 7 Vet.App. 116, 118 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left knee disability adversely affects his ability to work to the point that an increased rating should be awarded. He contends that he experiences swelling with activity and must take pain relievers. He also asserts that recurring swelling, pain, quadriceps atrophy and absence of foreseeable improvement were factors leading to his discharge from military service with a 20 percent rating assigned by the service department. He maintains that his knee problems have since worsened, the problems identified during service having carried over into his civilian life, affecting his ability to do the work for which he was trained. 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 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 veteran's claim for an increase. FINDING OF FACT The veteran's left knee disability is manifested by stiffness, swelling, and pain with certain activities; mild degenerative changes, no limitation of motion, and no more than mild instability or subluxation of the knee joint; he also has a disfiguring scar on his knee, pain in the area of the scar, and chondromalacia of the patella. CONCLUSION OF LAW A 30 percent rating for post-operative residuals of a ruptured left patellar tendon is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5258, 5259, 5260, 5261, 7804 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the veteran's contentions that his disability has worsened, the Board finds that his claim for an increased rating for post-operative residuals of a ruptured left patellar tendon is well-grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The service medical records show that the veteran injured his left knee while playing basketball in December 1988. He presented with edema of the knee, and following an X-ray study was assessed as having a dislocated knee and chip fracture. Further examination revealed he had a patellar tendon rupture which was surgically repaired. In February 1989, a cast was removed, the left knee was placed in a functional brace, and physical therapy was started. Records prepared thereafter show that he was followed primarily for quadriceps atrophy, limited joint motion, and complaints of pain with extensive activity. X- rays of the left knee in June 1989 revealed the presence of mild osteoporosis and postoperative changes involving the margin of the patella consistent with patellar tendon repair, but the left knee appeared to have a normal anatomical relationship. By June 1990, he was playing basketball again, and by November 1990, it was noted that he was back to normal activities, but because of pain he was unable to run three miles three times a week as required by his unit. Motion was performed from 0 to 125 degrees. An orthopedic evaluation conducted in February 1991 revealed a well-healed surgical incision. There was no lag or block to full extension, and he had normal flexion. There was no effusion, no significant joint line tenderness, and no instability. Mild swelling was noted over the patella tendon anteriorly. Marked quadriceps atrophy was also noted. X-ray films were considered basically normal. The impressions were that the veteran had persistent left knee pain and quadriceps atrophy. It was believed that no further progress could be anticipated, and he was instructed on a self program for building up his quadriceps. Reports associated with a medical evaluation board show that the veteran presented with a tender surgical scar and increased knee laxity. Because he was unable to participate in his unit's aerobics program, and because he continued to experience problems with squatting that in turn limited his ability to perform the duties of his occupational specialty, he was considered unfit for further active military service. An August 1991 record indicates that a Cybex test was conducted. It was thought that the veteran needed to participate in a home program to increase his strength. The veteran was examined by VA in January 1992. He complained of recurrent swelling of the left knee and pain in an area just superior to the tibial tuberosity whenever he engaged in extensive walking, running, or squatting. Upon examina-tion, a longitudinal, 20-centimeter, well-healed scar was noted on the anterior portion of the knee. Collateral ligaments were considered normal. There was no swelling, deformity, subluxation, or lateral instability. Motion was performed from - 10 to 90 degrees. On x-ray, two cylindrical defects were noted within the patella. There was no evidence of fracture or dislocation. The veteran testified at a hearing held at the RO in June 1992. He said that he had problems with swelling when walking as little as a couple of blocks or climbing as few as a couple of flights of stairs. He reported that his knee was rested when he was examined by VA in January 1992. He also testified that he had problems with stiffness in the morning or after standing, pain and swelling with any extended use, instability when walking up stairs, difficulties walking on uneven ground, deformity, and limited motion. He said that these problems hampered his ability to work in a job he was trained to do, freight packing and preservation. When examined by VA in February 1994, the veteran complained of stiffness, swelling, and pain when walking and bending. He reported having persistent swelling over the inferior aspect of the knee with activity. The examination revealed swelling below the kneecap and swelling between the kneecap and tibial tubercle. Mild laxity of the medial collateral ligament was noted. There was patellofemoral crepitus on flexion, but range of motion was normal (0 to 140 degrees). See 38 C.F.R. § 4.71, Plate II (1993). He was able to squat to the floor, but in so doing, there was an audible crepitus. A 21-centimeter scar was noted over the anterior aspect of the knee. An x-ray film reportedly showed no obvious effusion or calcified loose bodies. The joint spaces were normally maintained. Screw holes in the patella and tiny spurs along the superior and inferior-posterior margins of the patella were noted. The impression was minimal degenerative and post-operative changes. It was indicated that the ruptured tendon had aggravated the under surface of the kneecap and that the veteran had developed chronic chondromalacia patella secondary to the injury. A VA examination report dictated in April 1994 shows that the veteran complained of intermittent swelling, stiffness, tenderness, and a pulling sensation. He denied having problems with locking or giving way of the knee. He said that he took one or two Tylenol every other day for pain. A long scar was noted, and he had a tender spot over the medial inferior aspect of the joint. Otherwise, the joint was not tender. There was no fluid in the joint and only minimal crepitation. Range of motion was full, and strength of the knee and lower extremity was considered intact. It was noted that a Cybex evaluation had shown a pre- cuff syndrome. The examiner also noted that there had been a large difference in strength between the two legs in 1991, but that since that time the veteran had increased his strength on the left side. The examiner opined that the left knee problem had not caused the veteran to be totally disabled. He said that the veteran needed to watch his knee more carefully to avoid any additional trauma that would cause more degenerative joint disease. Joint disability may be rated in any number of ways. As for the knee, disability may be rated on the basis of limitation of motion (Diagnostic Codes 5256, 5260, 5261); however, recent examinations have shown the veteran's motion to be normal. A knee problem may also be rated based on difficulties due to dislocation or removal of semilunar cartilage (Diagnostic Codes 5258, 5259), yet this problem has not been identified as one the veteran experiences. A rating may also be assigned on the basis of recurrent subluxation or lateral instability. Diagnostic Code 5257. Although examination confirmed the presence of laxity of the medial collateral ligaments in February 1994, examinations have not shown that the veteran has more than a mild impairment due to subluxation or instability. However, using the guiding principles law set forth in the case of Esteban v. Brown, 6 Vet.App.. 259 (1994) that conditions should be rated separately unless they constitute the "same manifestation" or "same disability" under 38 C.F.R. § 4.14, the existence of mild laxity warrants the assignment of a separate 10 percent rating. However, no more than mild laxity has been exhibited since service in view of absence of such problems noted in January 1992 and the veteran's own admission in April 1994 that he was not then experience "giving way" of the knee. Further, although he had previously experienced problems with a diminuition of his muscle strength due to quadriceps atrophy, this problem has apparently improved to the point that strength in both the knee and lower extremity was considered to be intact in April 1994. For the reasons enumerated above, the veteran does not have problems with the left knee for which a rating above the currently assigned 10 percent may be assigned under Diagnostic Codes 5256 to 5261. Nevertheless, his testimony and complaints voiced during examinations tend to show that he does experience other problems, such as swelling, stiffness, and pain with use that might be due to degenerative changes detected in February 1994. If so, the provisions of 38 C.F.R. § 4.59 (1993) recognize that arthritis causing pain on motion is entitled to at least a minimum compensable rating for the joint. See Lichtenfels v. Derwinski, 1 Vet.App. 484, 487 (1991). Ten percent is the minimum compensable rating under the criteria used to evaluate the knee joint. See, e.g., Diagnostic Code 5257 (a 10 percent rating is assigned for "slight" impairment due to recurrent subluxation or lateral instability). A higher rating may be assigned for arthritis under Diagnostic Codes 5003 and 5010, but only if there is limitation of motion or involvement of at least two joints, neither of which is present here. Hence, the evidence supports no more that a separate rating of 10 percent for the arthritic pathology of the left knee. However, in addition to the foregoing manifestations, the veteran has a long surgical scar on his knee which is disfiguring. Tenderness around the knee joint has been reported, for which a separate 10 percent rating is warranted. Although he also has secondary chondromalacia of the patella, it has not been described as impairing. Nevertheless, it is clear that one doctor thought that the ruptured tendon had aggravated the surface of the veteran's kneecap. He has had to change jobs, has had his military career disrupted, and now has had his earning capacity impaired. Although no evidence has been presented to show that his left knee problem has required hospitalization since service, or that the veteran's difficulties are so exceptional or unusual as to render impractical the application of the regular schedular standards under § 3.321, it is clear that his earning capacity has been impaired as he seeks to engage in another occupation and that an increased schedular rating is warranted. ORDER An increased rating for post-operative residuals of a ruptured left patellar tendon is granted. M. CHEEK 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.