Citation NR: 9728504 Decision Date: 08/15/97 Archive Date: 08/26/97 DOCKET NO. 94-14 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for a right knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Acosta, Associate Counsel INTRODUCTION The veteran served on active duty from February 1985 to February 1989, having also had more than 3 years of prior active service, which have not been verified. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 1993 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Atlanta, Georgia, RO certified its appeal. The Board remanded this matter in March 1996 for additional development of the evidentiary record. Said development has been fully accomplished and the veteran’s appeal is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the service-connected right knee disability is currently more disabling than evaluated and that, accordingly, an evaluation in excess of 10 percent is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the present appeal has been obtained and developed by the agency of original jurisdiction. 2. The veteran’s right knee has not been shown to currently reveal evidence of any degree of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, limitation of flexion or extension, impairment of the tibia and fibula and acquired, traumatic genu recurvatum, with weakness and insecurity in weight- bearing objectively demonstrated. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for the service-connected right knee disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Part 4, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the veteran has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and VA’s obligation to assist the veteran in the development of her claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by VA’s Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, Part 4 (1996) (Schedule). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1996). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1996). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1996). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 38 C.F.R. § 4.40 (1996). See also, DeLuca v. Brown, 8 Vet.App. 202, 205-206 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to less or more movement than normal (due to a variety of reasons, to include ankylosis), weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, or deformity or atrophy of disuse. 38 C.F.R. § 4.45 (1996). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. VA regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The veteran contends that the service-connected right knee disability is more disabling than the currently assigned 10 percent. The Board finds that the preponderance of the evidence is against the veteran’s claim. The record shows that the service-connected right knee disability is currently evaluated as 10 percent disabling under Diagnostic Code 5257 of the Schedule, which provides for said rating when there is evidence of an impairment of the knee manifested by slight, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5257 (1996). The same rating is also warranted for the removal of the semilunar cartilage of the knee, symptomatic (Diagnostic Code 5259); limitation of the flexion of the leg to 45 degrees (Diagnostic Code 5260); limitation of the extension of the leg to 10 degrees (Diagnostic Code 5261); impairment of the tibia and fibula manifested by their malunion, with slight knee or ankle disability (Diagnostic Code 5262); and for acquired, traumatic genu recurvatum, with weakness and insecurity in weight-bearing, objectively demonstrated (Diagnostic Code 5263). 38 C.F.R. § 4.71a, Diagnostic Codes 5259, 5260, 5261, 5262, 5263 (1996). Additionally, VA regulation provides that degenerative arthritis of a joint is to be rated on the basis of limitation of motion under the appropriate diagnostic codes. In the absence of limitation of motion, a 10 percent rating will be assigned with X-Ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. If said involvement includes occasional incapacitating exacerbations, a 20 percent rating is to be assigned. 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5003 (1996). A 20 percent disability evaluation is also warranted for an impairment of the knee manifested by moderate, recurrent subluxation or lateral instability (Diagnostic Code 5257); dislocation of the semilunar cartilage of the knee, with frequent episodes of “locking,” pain and effusion into the joint (Diagnostic Code 5258); limitation of the flexion of the leg to 30 degrees (Diagnostic Code 5260); limitation of the extension of the leg to 15 degrees (Diagnostic Code 5261); and for impairment of the tibia and fibula manifested by their malunion, with moderate knee or ankle disability (Diagnostic Code 5262). 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258, 5260, 5261, 5262 (1996). The Schedule also provides for a 30 percent disability evaluation for ankylosis of the knee, at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees (Diagnostic Code 5256); impairment of the knee manifested by severe, recurrent subluxation or lateral instability (Diagnostic Code 5257); limitation of the flexion of the leg to 15 degrees (Diagnostic Code 5260); limitation of the extension of the leg to 20 degrees (Diagnostic Code 5261); and for impairment of the tibia and fibula manifested by their malunion, with marked knee or ankle disability (Diagnostic Code 5262). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5256, 5257, 5260, 5261, 5262 (1996). A 40 percent disability evaluation is warranted for ankylosis of the knee, in flexion between 10 and 20 degrees (Diagnostic Code 5256); limitation of the extension of the leg to 30 degrees (Diagnostic Code 5261); and for impairment of the tibia and fibula manifested by their nonunion, with loose motion, requiring brace (Diagnostic Code 5262). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5256, 5261, 5262 (1996). The Schedule also provides for a 50 percent disability evaluation for ankylosis of the knee, in flexion between 20 and 45 degrees (Diagnostic Code 5256) and limitation of the extension of the leg to 45 degrees (Diagnostic Code 5261), as well as for a 60 percent maximum disability evaluation for extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more (Diagnostic Code 5256). 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5256, 5261 (1996). According to the report of a VA orthopedic examination, dated in February 1993, the right knee had no evidence of effusion, had 0 to 135 degrees of flexion, positive patellar crepitus on motion, positive medial and lateral joint line tenderness, a “2+’ Lachman’s exam, a “2+” pivot-shift, a “2+” anterior drawer and a negative posterior drawer. The veteran was reportedly stable to varus and valgus stressing, neurovascularly intact and had a positive McMurray’s sign. Additionally, the subscribing examiner indicated that X-Rays had revealed no radiographic abnormalities on plain film and that an MRI only revealed evidence of a medial and lateral posterior meniscal tear and of an anterior cruciate ligament (“ACL”) tear. Right knee ACL tear and a possible medial and lateral meniscal tears were diagnosed. A VA radiology diagnostic report, dated in June 1996, shows an impression of post-surgical degenerative changes, associated with an apparent mild narrowing of the medial knee joint compartment, and a question of a small knee joint effusion. Finally, according to the report of a VA orthopedic examination, also dated in June 1996, the veteran’s right knee had a well-healed, nontender scar on its lateral anterior aspect, the result of prior surgeries. The knee reportedly showed no signs of inflammation, swelling, deformity, crepitus or tenderness and had full range of motion. Right knee pain, status post right knee surgery, was diagnosed. As shown above, none of the criteria set forth by VA regulations for the assignment of an evaluation in excess of 10 percent for the service-connected right knee disability have been met in the present case. The preponderance of the evidence is clearly against the veteran’s claim. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Part 4, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (1996). ORDER An increased evaluation for the service-connected right knee disability, currently rated as 10 percent disabling, is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals A proceeding instituted before the Board of Veterans’ Appeals (Board) may be assigned to an individual Member of the Board or to a panel of not less than three Members of the Board for a determination. 38 U.S.C.A. § 7102 (West Supp. 1996) (amending 38 U.S.C.A. § 7102 (West 1991)). This proceeding was assigned to the Board Member whose name and signature appear above. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -