BVA9500226 DOCKET NO. 93-04 245 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to increased evaluations for a low back disability, currently rated 20 percent disabling and a right knee disability, currently rated 10 percent disabling and to an increased (compensable) evaluation for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran has documented service from January 1981 to June 1991. The dates of a prior 3 year period of active service noted on his June 1991 Discharge Certificate have not been documented. This is an appeal from 1991 and 1992 rating actions by the Department of Veterans Affairs (VA) Regional Offices in Columbia, South Carolina and Roanoke, Virginia, which denied entitlement to service connection for a left knee disability and which assigned evaluations of 20 percent, 10 percent and no percent, respectively, for low back and right knee disabilities and essential hypertension. When the veteran initially filed his notice of disagreement in September 1991, both his back condition and his right knee condition were rated as noncompensable disabilities. They were assigned their current ratings, after being discussed in the statement of the case and an initial supplement, by a rating of September 1992. In that rating, it was presumed that the "partial grants" now in effect terminated these issues as appellate matters. This presumption was incorrect. 38 C.F.R. § 20.204(c). An "RO decision awarding a higher rating, but less than the maximum available benefit...does not...abrogate the pending appeal...." AB v. Brown 6 Vet.App. 35, 38 (1993). This conclusion holds despite the comment of the veteran's representative in February 1993 to the effect that these issues have been resolved. A representative may not withdraw a notice of disagreement or appeal filed by an appellant without the express written consent of the appellant. 38 C.F.R. § 20.204(c). The above analysis does not apply to the issue recognized by the RO as that of service connection for peritonitis. Service connection was granted by the rating decision of September 1992 and that completes the matter. The reasoning used in the increased rating situation simply does not apply in the service connection context, which is a yes-no decision. The veteran has not disagreed with the 10 percent rating assigned for this disorder and there is no gastrointestinal issue before us. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that service connection should be established for a left knee condition since he injured his left knee in service and still has pain involving that knee. It is further maintained that a 40 percent evaluation should be assigned for his low back condition since he is unable to bend and touch his toes, turn his head completely to the left or right or lift heavy objects without experiencing severe back pain. A 20 percent evaluation should be assigned for his right knee condition since he is unable to stand for more than 20 or 30 minutes at a time without his knee locking or giving out on him and causing a great deal of pain. Ever since his knee operation he has been in physical therapy which has not helped him. It is further maintained that a 20 percent evaluation should be assigned for essential hypertension since his blood pressure continues to remain high. 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 claims for service connection for a left knee disability and increased evaluations for a low back disability, right knee disability and essential hypertension. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. A chronic left knee disability has not been medically demonstrated either during service or subsequent thereto. 3. Forward flexion of the veteran's lumbar spine is to 72 degrees and backward extension is to 20 degrees. Left lateroflexion is to 20 degrees and right lateroflexion is to 35 degrees. Rotation to the left and right is 45 degrees. There is no tenderness to palpation. 4. Flexion of the veteran's right knee is to 72 degrees and extension is to 10 degrees. There is crepitus with passive motion of the knee. There is no instability of the knee. 5. The right knee condition is productive of no more than slight disability. 6. The veteran does not have diastolic blood pressure readings which are predominantly 100 or more, and he is not taking medication for his hypertension. CONCLUSIONS OF LAW 1. The veteran does not have a chronic left knee disability that was incurred in or aggravated during his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. Evaluations in excess of 20 percent, 10 percent and no percent, respectively, for the veteran's low back disability, right knee disability and essential hypertension are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5295, 5257, 7101 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. I. The Claim for Service Connection for a Left Knee Disability A review of the veteran's service medical records reflects that in September 1985 he was placed on limited duty for a painful left knee. The remainder of his service medical records reflects no reference to a left knee condition. On an orthopedic examination by the VA in August 1992 it was indicated that the veteran had no problems with his left knee. There was a lipoma (benign fatty tumor) on the left knee; however, the veteran has not indicated that he is seeking service connection for that condition. There was no instability of the left knee and an X-ray study of the left knee was negative. Range of motion was from 0 to 130 degrees. In the absence of any current objective pathology involving the veteran's left knee, there is no evidentiary basis which would warrant the grant of service connection for such a condition. 38 U.S.C.A. § 1110. It appears that the left knee disorder noted in service represented an acute and transitory disorder that resolved, leaving no residual disability. 38 C.F.R. § 3.303. II. The Claims For Increased Evaluations For a Low Back Disability, Right Knee Disability and Essential Hypertension The veteran's service medical records reflect that he was seen on an outpatient basis on a number of occasions with complaints of low back pain. In April 1987 the assessment was mechanical low back pain. In January 1989 an assessment was made of a low back strain. When the veteran was examined by the VA in August 1992, he indicated that when he stood for 20 minutes or turned his head to the left he had increased back pain. Bending also increased his back pain and walking up stairs increased the pain. On examination the musculature of the back was not tender to palpation and there was no spine tenderness. Range of motion of the lumbar spine was as follows: Forward flexion to 72 degrees, backward extension to 20 degrees; left lateroflexion to 20 degrees; right lateroflexion to 35 degrees; and rotation to the left and right to 45 degrees. All motion was stopped secondary to pain. Straight leg raising test, bilaterally, was positive at 75 degrees. Sensation was intact in the upper and lower extremities and motor strength was 5/5 in the upper and lower extremities. An X-ray study of the lumbosacral spine was negative. The diagnosis was low back strain. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of those manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Code 5295. In this particular case, as indicated previously, there is some limitation of motion of the veteran's lumbar spine; however, marked limitation of forward bending has not been demonstrated. The August 1992 VA examination also did not reflect any tenderness or muscle spasm involving the lumbar spine. Osteoarthritic changes were not demonstrated on the X-ray of the lumbar spine. In the Board's judgment, the current manifestations of the veteran's lumbar spine disability are not shown to be severe in nature as required for a 40 percent evaluation for that condition under the provisions of Diagnostic Code 5295. Accordingly, favorable action in connection with that claim is not warranted. The veteran's complaints of pain involving his lumbar spine and the other symptoms he noted in his appeal are contemplated in the current 20 percent evaluation assigned for that disability. While there is some limitation of motion in the spine, it is slight to moderate in degree, and certainly would not permit a higher rating under Code 5292 based on such limitation. The veteran's service medical records also reflect that he was seen on various occasions with complaints of pain involving the right knee. In March 1986 an arthroscopy of the right knee was performed with excision of a lipoma. When the veteran was examined by the VA in August 1992, he reported that his right knee had given out on him on six occasions. He stated that he had to wear a knee brace at times for support. When sitting he had to straighten his leg out and it snapped and relieved the pain. He reported that his knee swelled up twice a week without erythema or increased warmth. On examination flexion of the right knee was to 72 degrees and extension to 10 degrees. There was crepitus with loud popping with passive motion of the right knee. It was indicated that there was no instability of the right knee. An X-ray study of the right knee was negative. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment. 38 C.F.R. Part 4, Code 5257. Limitation of flexion of either leg to 45 degrees warrants a 10 percent evaluation. A 20 percent evaluation requires that flexion be limited to 30 degrees. 38 C.F.R. Part 4, Code 5260. Limitation of extension of either leg to 10 degrees warrants a 10 percent evaluation. A 20 percent evaluation requires that extension be limited to 15 degrees. 38 C.F.R. Part 4, Code 5261. The recent VA examination reflects that the veteran has some restriction of motion of his right knee; however, the restriction of motion was not to such an extent so as to warrant entitlement to an evaluation in excess of 10 percent for the knee. Although the veteran reported that the knee had given out on him on several occasions, there was no instability of his knee demonstrated on the examination. An X-ray study of the right knee did not reflect any abnormality. Accordingly, under these circumstances, the Board concludes that the veteran's right knee condition has resulted in no more than slight impairment and as such warrants no more than the current 10 percent evaluation assigned by that disability. As in the case of his low back condition, the veteran's complaints of pain involving his right knee and symptoms he reported in his appeal are contemplated within the 10 percent evaluation assigned for that disability. The veteran's service medical records reflect that in January 1991 a blood pressure reading of 142/100 was recorded and hypertension was diagnosed. At the time of the August 1992 VA examination, the veteran indicated that he had never been on medication for hypertension. He indicated that he had never had any eye, kidney or heart damage, secondary to hypertension. The cardiac examination was normal. A chest X-ray examination was negative. The following blood pressure readings were recorded: 120/86; 130/80; and 126/90. A 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) where the diastolic pressure is predominantly 100 or more. A minimum 10 percent evaluation is also assigned when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. 38 C.F.R. Part 4, Code 7101. As indicated previously, the August 1992 VA examination reflected diastolic blood pressures ranging from 80 to 90. The veteran indicated that he had never taken any medication for hypertension and there was no indication of any cardiac disability resulting from the hypertension. The veteran has not cited any symptoms which would be consistent with his statement that he thinks his hypertension should be rated at 20 percent. Accordingly, a compensable evaluation for the veteran's hypertension would not be warranted under the provisions of Diagnostic Code 7101. In reaching its decision regarding the veteran's claims for increased evaluations for the disabilities in question, the Board has considered the complete history of the disabilities as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. In each case, the nature of the original condition has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40. Further, the Board finds that in this case the disability pictures are not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that any of the conditions has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The criteria for evaluations greater than those currently in effect for the claimed conditions have not been met or approximated. 38 C.F.R. § 4.7. The Board does not find the evidence to be so evenly balanced in this case that there is doubt as to any material issue. 38 C.F.R. § 5107. ORDER Entitlement to service connection for a chronic left knee disability is not established. Entitlement to increased evaluations for low back and right knee disabilities and to an increased (compensable) evaluation for hypertension is not established. The appeal is denied. ROBERT D. PHILIPP 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. (CONTINUED ON NEXT PAGE) 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.