BVA9502755 DOCKET NO. 92-12 344 ) 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 degenerative arthritis of the left knee with osteochondritis dissecans, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from June 1954 to September 1958. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1990 rating decision from the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO granted the veteran a 10 percent evaluation for degenerative arthritis of the left knee with osteochondritis dissecans (left knee disorder). The veteran testified at a RO hearing in October 1991. The case was remanded by the Board for further development in August 1993. On an October 1994 statement the veteran's representative appeared to raise the issue of entitlement to service connection for high blood pressure as proximately due to, or the result of a service-connected disability. However, since that issue is not currently on appeal it is referred to the RO for action deemed appropriate. It is noted that the RO appears to be already developing such claim as evidenced by a November 1994 VA letter to the veteran requesting additional information. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting an increased rating for the left knee disorder. Specifically, the veteran asserts that his left knee is painful, arthritic and has a chipped bone inside. He claims that his left knee "gives out", which makes it difficult to walk. 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 left 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 left knee disorder is primarily manifested by slight impairment which includes some limitation of motion and minimal degenerative arthritic changes; however, moderate impairment of the left knee including recurrent subluxation or lateral instability or marked limitation of motion is not shown. 3. The veteran's disability does not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSION OF LAW 1. The schedular criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee with osteochondritis dissecans have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, including Codes 5010, 5257, 5258, 5259, 5260 and 5261 (1993). 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) (1993). 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 complained that he injured his left knee in November 1954. In August 1958 he received treatment for left knee pain. X-rays taken at that time revealed osteochondritis dissecans. The service separation examination was negative for complaints of left knee pain, but the examiner noted a deformed knee with no complications. Following service the veteran was accorded a VA examination in April 1964. At that time the veteran complained of left knee pain. He stated that he could not fully squat. The examiner reported that the veteran's left knee had no redness, heat, buckling, or locking. He noted that the veteran had some difficulty in full flexion of the left knee. X-rays revealed osteochondritis dissecans medial condyle left femur. The final diagnosis included osteochondritis dissecans of the left knee and degenerative arthritis of the left knee. Based upon the service medical record findings and the VA examination report, the RO, in a May 1964 rating decision granted service connection for degenerative arthritis of the left knee with osteochondritis dissecans and assigned a noncompensable rating under Diagnostic Code 5010 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1993). The noncompensable evaluation was thereafter continued until 1982, at which time the veteran sought an increased rating for the left knee disorder. On a March 1982 VA examination report the examiner reported that the veteran's left knee had normal range of motion, was stable, and without effusion. In May 1982 the RO denied the veteran's claim for an increased rating on the grounds that the veteran's disorder did not result in impairment of left knee motion or other symptoms that would warrant an increased rating. The noncompensable rating was continued. In October 1990 the veteran again requested an increased (compensable) rating for his left knee disorder. In support of his claim he submitted VA outpatient reports dated between January 1982 and August 1990. The reports showed periodic complaints of left knee pain and swelling. On an August 1990 report the veteran complained of the left knee "giving out". The examiner noted that left knee flexion was 135 degrees compared to 145 degrees on the right. He noted slight effusion of the left knee, but no indication of ligament laxity. In a November 1990 rating decision, the RO granted the veteran's claim for an increased rating for left knee disorder, and assigned a 10 percent disability rating. 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 current 10 percent rating under Diagnostic Code 5010 contemplates degenerative arthritis substantiated by x- ray findings. Under Diagnostic Code 5003 degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under appropriate Diagnostic Codes for the specific joint or joints involved. Diagnostic Codes 5257, 5258, 5259, 5260 and 5261 are the Codes provided to evaluate knee disorders. The veteran testified at a RO hearing in October 1991. He complained that the left knee "gives out" on him, that there was some shrinkage of the left knee, and that he could not bend back his left knee as far as he could his right knee. However, the veteran admitted that his left knee did not limit the distance he was able to walk, that there was no looseness in the left knee joint, and that only once in recent years did his left knee swell. VA outpatient reports dated between January and November 1991 revealed that the veteran sought treatment for his left knee disorder. A July 1991 MRI report showed that the veteran had a loose body to the ECL, osteochondral fracture, osteoarthritis of the left knee, and a small amount of effusion. During an August 1991 examination the veteran complained of left knee pain after "stepping wrong." He also complained of sharp radiating pain up to the buttocks and down to the ankle. He denied any swelling, redness, fever, clicking, or grinding, but reported occasional "giving out" of the left knee. The examiner reported slight effusion in the left knee, but no swelling or tenderness. He also noted that the veteran's reflexes were intact. Range of motion studies of the left knee were 0 to 135 degrees (normal: 0 to 140 degrees). 38 C.F.R. Part 4, § 4.70, Plate I (1993). X- rays revealed early degenerative joint disease. On a September 1991 report the veteran complained of left knee pain which he controlled with medication. He denied rest pain or pain when walking, but he reported that pain was present during strenuous activity. The veteran denied clicking or locking of the left knee, but noted that his left knee gives way when going downhill. Upon examination of the left knee, the examiner reported no joint line tenderness, range of motion from 0 to 125 degrees, moderate crepitus patella femoral, no effusion, no instability, no tenderness, and a negative Lachmans test. MRI findings revealed probable Grade II medial meniscus tear. The examiner's overall assessment was non mechanical left knee pain. On a November 1991 VA outpatient report the veteran complained of left knee pain. He reported that his walking was unlimited, but that stairs were sometimes painful. The left knee revealed 0 to 130 degrees range of motion. X-rays revealed early arthritis with calcification. The examiner recommended no treatment except for the veteran to continue his medication. In August 1993 the Board remanded the case for further development, including updated records and a VA orthopedic examination. In addition to duplicate VA outpatient reports, the veteran submitted recent VA outpatient reports. However, these reports reflected treatment for different disorders. During an April 1994 VA orthopedic examination, the veteran complained of occasional left knee pain lasting about a day and pain when walking upstairs. He denied any recent left knee effusion or pain when working or standing. Upon examination of the left knee, the examiner noted no deformity, effusion, or inflammation. He noted some cracking motion on range of motion and normal walking, sitting, and standing. He reported that the veteran was able to squat down to 1 foot from the floor and bearing weight on the right leg because of left knee pain. The examiner reported that the veteran's lower extremity strength was normal with no muscular atrophy or varicose veins. He noted that the left knee had no swelling, deformity, or lateral instability. Range of motion of the left knee was flexion 55 degrees, extension 0 degrees. X-rays of the left knee revealed some calcification and degenerative spurring. The final diagnosis was left knee degenerative joint disease with pain. On a June 1994 rating decision, the RO confirmed the earlier rating decision and continued the 10 percent disability evaluation for the left knee disorder. On his October 1994 statement, the veteran's representative contended that the examination was not performed by a board certified orthopedist, that the examiner did not review the veteran's claim folder prior to examining him and that he did not follow the instructions in the Board's remand. It is unclear whether the examiner had access to the veteran's claims folder before examining him, but it is clear that the examination was in compliance with the Board's remand. Although it is not clear whether an actual board certified orthopedist performed the April 1994 VA examination, the RO requested that a board certified orthopedist perform the examination. In any event, the Board finds that the examination was more than adequate for rating purposes and established the current level of severity of the veteran's left knee disorder. The report includes a history of the veteran's disability, and the subjective and objective findings were reported in detail. No evidence has been provided which would establish that the examinations was inadequate for purposes of rating the veteran's disability. 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 experiences some pain associated with the left knee disorder. However, the pain is contemplated under the current rating. As noted above, the veteran is currently receiving a 10 percent schedular evaluation on the basis of degenerative arthritis of the left knee under Diagnostic Code 5010. The veteran's left 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. The examiner who conducted the April 1994 VA examination stated that the veteran had no deformity, swelling, or lateral instability of the left knee. A 20 percent rating under Diagnostic Code 5258 requires evidence of dislocated cartilage with frequent episodes of "locking", pain, and effusion of into the joint. Although X-rays of the left knee confirmed that the veteran had some calcification and degenerative spurring, the veteran himself noted that he only had left knee pain about once a month, lasting for about a day and relieved with pain medication. Moreover, on the most recent VA examination the veteran denied any left knee effusion and the examiner reported no left knee effusion. In addition, the results of the range of motion tests do not demonstrate that the veteran's flexion in the left knee is limited to 30 degrees or extension limited to 15 degrees, which is required for an assignment of a 20 percent rating under Diagnostic Codes 5260 and 5261, respectively. In weighing the evidence of record pertaining to the left knee, the Board considered the available VA examination and outpatient reports, in light of the veteran's contentions. As previously noted, the April 1994 VA examination report revealed that the veteran had no deformity, effusion, inflammation, muscular atrophy, swelling, or lateral instability associated with the left knee. Although current X-rays of the left knee showed minimal degenerative changes, his left knee disability produce no more than slight impairment and limitation of motion. The rating currently assigned rating for the left 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 disability. 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) (1993). ORDER Entitlement to an increased rating for degenerative arthritis of the left knee with osteochondritis dissecans 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.