Citation Nr: 0636121	
Decision Date: 11/20/06    Archive Date: 11/28/06

DOCKET NO.  04-04 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent 
for patella alta chondromalacia of the left knee, to include 
a claim of entitlement to a compensable rating prior to March 
13, 2001.

2.  Entitlement to an initial rating in excess of 10 percent 
for patella alta chondromalacia of the right knee, to include 
a claim of entitlement to a compensable rating prior to March 
28, 2000.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Rebecca Feinberg, Associate Counsel


INTRODUCTION

The veteran had active service from July 1976 to November 
1978.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a February 2001 rating decision of the above 
Department of Veterans Affairs (VA) Regional Office (RO).

In February 2002, the veteran testified before a Veterans Law 
Judge regarding his claim for service connection for the 
above-listed issues.  A transcript of the hearing is of 
record.  That Veterans Law Judge is no longer with the Board.

In March 2005, the veteran testified before the undersigned 
Veterans Law Judge at a Travel Board hearing at the RO, 
regarding his claims for increased ratings.  A transcript of 
the hearing is associated with the claims file.

These claims were previously before the Board, and were 
remanded in July 2005.  They are now properly before the 
Board.


FINDINGS OF FACT

1.  The veteran's left knee patella alta chondromalacia was 
characterized by no diagnosis other than patellofemoral pain 
prior to March 13, 2001.

2.  Beginning on March 13, 2001, the veteran's left knee 
patella alta chondromalacia is characterized by a diagnosis 
of degenerative joint disease, subjective reports of giving 
way, the use of a brace, and flexion limited to 70 degrees 
after repetitive testing.

3.  The veteran's right knee patella alta chondromalacia was 
characterized by diagnoses of mild degenerative changes, 
arthritis, and patellofemoral pain, prior to March 28, 2000.

4.  Beginning June 1, 2000, the veteran's right knee patella 
alta chondromalacia is characterized by subjective complaints 
of pain and giving way, the use of a brace, and flexion 
limited to no more than 80 degrees, even when considering 
repetitive motion.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 
percent for patella alta chondromalacia of the left knee, to 
include a claim of entitlement to a compensable rating prior 
to March 13, 2001, are not met.  38 U.S.C.A. § 1155 (West 
2002 & Supp. 2006); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, 
Diagnostic Codes 5003, 5256-5263 (2006).

2.  The criteria for an initial rating in excess of 10 
percent for patella alta chondromalacia of the right knee, to 
include a claim of entitlement to a compensable rating prior 
to March 28, 2000, are not met.  38 U.S.C.A. § 1155 (West 
2002 & Supp. 2006); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, 
Diagnostic Codes 5003, 5256-5263 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in his possession that 
pertains to the claim, in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable RO decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004); see Mayfield 
v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  In the present 
case, this was not done.

Here, the Board finds that any defect with respect to the 
timing of the VCAA notice requirement was harmless error.  
Although the notice was provided to the veteran after the 
initial adjudication, the veteran has not been prejudiced 
thereby.  The content of the notice provided to the veteran 
fully complied with the requirements of 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  Not 
only has the veteran been provided with every opportunity to 
submit evidence and argument in support of his claim and to 
respond to VA notices, but the actions taken by VA have 
essentially cured the error in the timing of notice.  
Further, the Board finds that the purpose behind the notice 
requirement has been satisfied because the veteran has been 
afforded a meaningful opportunity to participate effectively 
in the processing of his claims.  For these reasons, it is 
not prejudicial to the veteran for the Board to proceed to 
finally decide this appeal.

In the Mayfield case, the U.S. Court of Appeals for the 
Federal Circuit addressed the meaning of prejudicial error 
(38 U.S.C.A. § 7261(b)), what burden each party bears with 
regard to the Court's taking due account of the rule of 
prejudicial error, and the application of prejudicial error 
in the context of the VCAA duty to notify (38 U.S.C.A. 
§ 5103(a)).  The Federal Circuit held, in effect, that the 
Board must specify what documents satisfy the duty to provide 
notice to a claimant, and that the

Court of Appeals for Veterans Claims must, if a case is 
appealed to the Court, specifically review the Board's 
findings regarding such notice.  Considering the decisions in 
Pelegrini and Mayfield, the Board finds that the requirements 
of the VCAA have been satisfied in this matter, as discussed 
below.

In January 2003 and August 2005 letters, the RO informed the 
veteran of its duty to assist him in substantiating his 
claims under the VCAA, and the effect of this duty upon his 
claims.  We therefore believe that appropriate notice has 
been given in this case.  See Charles v. Principi, 16 Vet. 
App. 370, 373-74 (2002).  As the Federal Circuit Court has 
stated, it is not required "that VCAA notification must 
always be contained in a single communication from the VA."  
Mayfield, supra, 444 F.3d at 1333.

The Board concludes that the notifications received by the 
veteran adequately complied with the VCAA and subsequent 
interpretive authority, and that he has not been prejudiced 
in any way by the notice and assistance provided by the RO.  
Likewise, it appears that all obtainable evidence identified 
by the veteran relative to his claims has been obtained and 
associated with the claims file, and that neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, which would need to be obtained for a 
fair disposition of this appeal.  Thus, for these reasons, 
any failure in the timing or language of VCAA notice by the 
RO constituted harmless error.  See also Conway v. Principi, 
353 F.3d 1359, 1374 (2004), holding that the Court of Appeals 
for Veterans Claims must "take due account of the rule of 
prejudicial error."

Accordingly, we find that VA has satisfied its duty to assist 
the veteran in apprising him as to the evidence needed, and 
in obtaining evidence pertaining to his claims, under both 
former law and the VCAA.  The Board, therefore, finds that no 
useful purpose would be served in remanding this matter for 
yet more development.  Such a remand would result in 
unnecessarily imposing additional burdens on VA, with no 
additional benefit flowing to the veteran.  The Court of 
Appeals for Veterans Claims has held that such remands are to 
be avoided.  See Winters v. West, 12 Vet. App. 203 (1999) (en 
banc), vacated on other grounds sub nom. Winters v. Gober, 
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. 
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).  See also Livesay v. Principi, 15 Vet. App. 165, 178 
(2001) (en banc).

In addition to the foregoing harmless-error analysis, to 
whatever extent the recent decision of the Court in Dingess 
v. Nicholson, 19 Vet. App. 473 (2006), requires more 
extensive notice in claims for compensation, e.g., as to 
potential downstream issues such as disability rating and 
effective date, the Board finds no prejudice to the veteran 
in proceeding with the present decision.  Given the extensive 
communication between the RO and the veteran, the veteran's 
two Board hearings, and the highly qualified representation 
provided to the veteran, the Board finds no prejudice to the 
veteran in proceeding with this case.  Furthermore, there is 
no indication that there are any outstanding records to 
obtain.

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is 
an approximate balance in the evidence regarding the merits 
of an issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that to deny a claim on 
its merits, the evidence must preponderate against the 
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert.

II.  Applicable Law

Disability ratings are based upon schedular requirements that 
reflect the average impairment of earning capacity occasioned 
by the state of a disorder.  38 U.S.C.A. § 1155 (West 2002 & 
Supp. 2006).  Separate rating codes identify the various 
disabilities.  38 C.F.R. Part 4 (2006).  In determining the 
level of impairment, the disability must be considered in the 
context of the entire recorded history, including

service medical records.  38 C.F.R. § 4.2.  An evaluation of 
the level of disability present must also include 
consideration of the functional impairment of the veteran's 
ability to engage in ordinary activities, including 
employment.  38 C.F.R. § 4.10.  Also, 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.

The veteran's right and left knee disabilities are rated 
under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 
5299-5003.  The veteran's specific diagnoses are not listed 
in the Rating Schedule.  Therefore, the RO assigned DC 5299 
pursuant to 38 C.F.R. § 4.27, which provides that unlisted 
disabilities requiring rating by analogy will be coded first 
the numbers of the most closely related body part and "99."  
See 38 C.F.R. § 4.20.  The RO determined that the most 
closely analogous diagnostic code is 38 C.F.R. § 4.71a, DC 
5003, for degenerative arthritis.

Under Diagnostic Code 5003, degenerative arthritis 
established by X-ray findings will be rated on the basis of 
limitation of motion under the appropriate diagnostic does 
for the specific joint or joints involved.  When, however, 
the limitation of motion of the specific joint or joints 
involved is noncompensable under the appropriate diagnostic 
codes, a rating of 10 percent is for application for each 
such major joint or group of minor joints affected by 
limitation of motion, to be combined, not added.  Id.  In the 
absence of limitation of motion, a 20 percent disability 
rating is for application with X-ray evidence of involvement 
of two or more major joints or two or more minor joint 
groups, with occasional incapacitating exacerbations and a 10 
percent evaluation is for application with x-ray evidence of 
involvement of two or more major joints or two or more minor 
joint groups.  Id.

Under Diagnostic Code 5260, flexion of the leg is rated 
noncompensable when limited to 60 degrees, 10 percent when 
limited to 45 degrees, 20 percent when limited to 30 degrees, 
and 30 percent when limited to 15 degrees.


Under DC 5261, extension of the leg is rated noncompensable 
when limited to 5 degrees, 10 percent when limited to 10 
degrees, 20 percent when limited to 15 degrees, 30 percent 
when limited to 20 degrees, 40 percent when limited to 30 
degrees, and 50 percent when limited to 45 degrees.

Under DC 5257, recurrent subluxation or lateral instability 
of the knee is rated 10 percent when slight, 20 percent when 
moderate, and 30 percent when severe.

The Board notes that 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. 
Brown, 8 Vet. App. 202 (1995), require us to consider the 
veteran's pain, swelling, weakness, and excess fatigability 
when determining the appropriate disability evaluation for a 
disability using the limitation-of-motion diagnostic codes.  
Within this context, a finding of functional loss due to pain 
must be supported by adequate pathology, and evidenced by the 
visible behavior of the claimant.  Johnston v. Brown, 10 Vet. 
App. 80, 85 (1997).  However, under Spurgeon v. Brown, 10 
Vet. App. 194 (1997), the Board is not required to assign a 
separate rating for pain.

The Board here notes that this is a case in which the veteran 
has expressed continuing disagreement with the initial rating 
assignments.  In general, when an increase in the disability 
rating is at issue, it is the present level of disability 
that is of primary concern.  See Francisco v. Brown, 7 Vet. 
App. 55, 58 (1994).  However, when the current appeal arose 
from the initially assigned rating, consideration must be 
given as to whether staged ratings should be assigned to 
reflect entitlement to a higher rating at any point during 
the pendency of the claim.  Fenderson v. West, 12 Vet. App. 
119 (1999).

III.  Left Knee

The veteran's left knee disability is rated as noncompensable 
from April 22, 1999, and at10 percent from March 13, 2001.

A July 1999 VA X-ray report of both knees shows no left knee 
diagnosis.




A February 2000 VA outpatient treatment record shows the 
veteran complained of and was diagnosed with patellofemoral 
pain in his left knee.

These are the only two medical records regarding the 
veteran's left knee dated prior to March 13, 2001.  There is 
no documented diagnosis of degenerative joint disease during 
this time.  Since the veteran was not diagnosed with 
arthritis until March 2001, the Board finds that his left 
knee disability does not warrant a compensable evaluation 
under Diagnostic Code 5003 prior to that date.  The July 1999 
X-ray report specifically shows a diagnosis of arthritis in 
the right knee and no diagnosis with regard to the left knee.  
Therefore, the Board finds that the veteran did not manifest 
this disorder prior to the March 13, 2001, treatment record.

In addition, the veteran's disability does not warrant a 
compensable evaluation prior to March 13, 2001, under any 
other diagnostic code.  No limited motion was noted, and 
there is no evidence of instability or subluxation of the 
left knee during the pertinent period.  Patellofemoral pain 
was the only diagnosis offered regarding the left knee prior 
to March 13, 2001.  Therefore, a compensable evaluation is 
not warranted for that time period.

March 2001 VA outpatient records show the veteran complained 
of chronic pain in both knees.  He was diagnosed with 
degenerative joint disease of the left knee.

March and April 2001 VA records show the veteran received 
physical therapy for both of his knees.

An April 2003 VA treatment record shows the veteran wore 
braces on both knees.

In November 2003, he underwent VA examination.  He said his 
knees sometimes gave way.  His left knee pain was eight out 
of ten, and he stated they were weak and stiff.  He used a 
brace on his knee.  On examination, extension was to 0 
degrees.  Flexion was to 80 degrees, at which point there was 
pain.  Drawer sign was negative.  There was mild medial 
laxity.  There were increased symptoms into the

front of the knee with flexion and extension.  This was 
exacerbated by applying pressure.  X-rays showed evidence of 
minor osteoarthritis.  The diagnosis was mild degenerative 
joint disease and femoropatellar pain syndrome of the left 
knee.

February and June 2004 VA clinical records show the veteran 
complained of chronic pain in his knees.  He used braces and 
a walking stick.  His knee gave out.  On examination, range 
of motion was restricted.

A September 2004 VA treatment record shows the veteran 
complained of knee pain.  On X-ray, he had marked narrowing 
of the medial compartment of the left knee.  He was told to 
use a brace to prevent further damage.

During his March 2005 Board hearing, the veteran described 
grinding in his knee joints, instability, and falling.  He 
also experienced locking and popping in his knees.  His knees 
were weak and gave way.  The veteran recently got a brace for 
his left knee, which he wore all day.  His knees swelled, and 
he used ice.

In February 2006, the veteran again underwent VA examination.  
He stated he had increased intensity and frequency of pain.  
He complained of weakness and giving way, causing him to 
fall.  On examination, the left knee extended to 0 degrees.  
It flexed to 85 degrees, at which point he stated he could go 
no further because of pain.  Repetition was performed five 
times with increasing pain, fatigability, and lack of 
endurance demonstrated.  On the fifth repetition, flexion was 
limited to 70 degrees with pain.  There was negative McMurray 
and drawer sign.  The knee was considered stable.  The 
diagnosis was mild degenerative joint disease and 
patellofemoral pain syndrome of the left knee.

With regard to the criteria associated with Diagnostic Code 
5003, the evidence shows that in November 2003 the veteran's 
extension was to 0 degrees, and his flexion was to 80 
degrees.  He had pain at that point.  The symptoms were 
increased with flexion, extension, and pressure.  The 
February 2006 VA examination report shows the left knee had 
extension to 0 degrees and flexion to 85 degrees.  
Fatigability and lack of endurance did affect the veteran's 
range of motion.  After repetition, the veteran could only 
flex to 70 degrees.

In order to warrant an increase to a 20 percent disability 
evaluation, the veteran must demonstrate extension limited to 
15 degrees or flexion limited to 30 degrees.  Evaluating the 
record, the Board finds that, even considering the criteria 
associated with DeLuca v. Brown, supra, there is no evidence 
that the veteran ever demonstrated extension or flexion 
limited enough to warrant a 20 percent disability rating.  In 
fact, even when the Board considers the effect of pain, 
fatigability, lack of endurance, and pain on motion, the 
veteran's left knee disability warrants a noncompensable 
rating under the criteria of DCs 5260 and 5261.

In addition, under Diagnostic Code 5003, an increase to a 20 
percent disability rating is not warranted because only the 
veteran's left knee is at issue.  In order to warrant a 20 
percent disability rating, the Board would have to rate the 
veteran's left and right knees together, resulting in the 
same level of benefits to the veteran.

With regard to evaluating the veteran for instability, the 
veteran first mentioned that his knees sometimes gave way 
during his November 2003 VA examination.  He stated that he 
had braces for both knees but did not wear them to the 
examination.  There was a negative drawer sign, and the 
examiner noted mild medial laxity bilaterally.

In a February 2004 VA outpatient record, the veteran 
indicated that his knee gave out, and he used a brace and a 
cane.  A September 2004 outpatient record shows that he was 
given a brace to prevent further damage to his left knee.  
During his February 2006 VA examination, he indicated that he 
had weakness, and his knees gave way, causing him to fall.  
The examiner also noted the veteran had a negative drawer 
sign.  The knee was considered stable.

The veteran testified in March 2005 that his knees would give 
way and he would fall.

Based upon the evidence of record, the Board finds that the 
evidence shows no more than slight lateral instability of the 
veteran's left knee.  Only once was the veteran's instability 
diagnosed by a physician, and at that time, it was described 
as mild.  While the veteran has reported that he experiences 
giving way of his knee, there is no evidence that this occurs 
with such frequency as to demonstrate moderate laxity of the 
left knee.  Therefore, an increase is not warranted under the 
applicable diagnostic code.

Furthermore, the veteran has never been diagnosed with 
ankylosis, dislocated cartilage, or nonunion or malunion of 
the tibia and fibula of his left knee.  Therefore, an 
increased rating is not warranted under these rating 
criteria.

Consequently, the Board finds that the evaluation assigned in 
this decision adequately reflects the clinically established 
impairment experienced by the veteran.  As the evidence 
preponderates against the claim for a compensable rating 
prior to March 13, 2001, and a 10 percent rating thereafter, 
for the veteran's left knee patella alta chondromalacia, the 
benefit-of-the-doubt doctrine is inapplicable, and an 
increased rating must be denied.  38 U.S.C.A. § 5107(b); 
Gilbert, supra.

IV.  Right Knee

The veteran's right knee patella alta with chondromalacia was 
rated as noncompensable from April 22, 1999, to March 27, 
2000; 100 percent from March 28, 2000, to May 31, 2000 (a 
convalescence rating); and 10 percent from June 1, 2000.  
Since the veteran was rated 100 percent for a certain period 
of time, and that is the maximum disability evaluation, the 
Board will not evaluate the veteran's disability for that 
period.

For the period of time prior to March 28, 2000, the evidence 
shows that July 1999 VA X-rays resulted in a diagnosis of 
mild degenerative changes of the right patella.  There was no 
evidence of knee joint effusions or loose bodies.

A February 2000 VA outpatient record shows the veteran had 
arthritis and patellofemoral pain syndrome of his knee.




A March 20, 2000 X-ray report shows no evidence of fracture 
or dislocation of the right knee.  The diagnosis was mild 
hypertrophic change within the tibial spines and posterior 
patella.  Otherwise, the knee was within normal limits.

For the time period between April 22, 1999, and March 27, 
2000, the Board finds that the veteran's right knee 
disability does not warrant a compensable rating.  
Specifically, while the veteran has X-ray evidence of 
degenerative joint disease of the right knee, there is no 
evidence during that time period of any limitation of motion.  
In addition, the only joint involved in this discussion is 
the veteran's right knee.  Therefore, he is not entitled to a 
10 percent disability evaluation under Diagnostic Code 5003.

In addition, during that time period, the veteran 
demonstrated no other diagnoses or symptoms related to his 
right knee disability.  Therefore, a compensable evaluation 
is not warranted.

The evidence of record beginning June 1, 2000, includes March 
and April 2001 VA outpatient and physical therapy reports 
showing pain and giving way of his right knee.  He had 
advanced degenerative joint disease changes of the right 
knee.

Upon November 2003 VA examination, he complained that his 
knees sometimes gave way.  He complained of ongoing pain.  
Extension was to 0 degrees, and flexion was to 80 degrees, 
with pain.  There was a negative drawer sign and mild medial 
laxity bilaterally.  Symptoms were exacerbated with pressure.  
The diagnosis was mild degenerative joint disease and 
femoropatellar pain syndrome of the right knee.

February, June, and September 2004 VA treatment records show 
the veteran complained of right knee pain and giving way.  
Range of motion was restricted, and he wore a knee brace.


In February 2006, the veteran again underwent VA examination.  
He reported weakness, giving way, and daily flare-ups.  On 
examination, the right knee extended to 0 and flexed to 95 
degrees with pain.  Repetition increased the pain.  There 
were signs of fatigability, lack of endurance, and loss of 
motion.  The last repetition was to 90 degrees.  There was a 
negative drawer sign, and the knee was stable.  The diagnosis 
was status post arthroscopic surgery, mild degenerative joint 
disease, and patellofemoral pain syndrome.

In evaluating the veteran's disability for this time period, 
the Board finds that he is not entitled to a 20 percent 
disability evaluation under the criteria of DC 5003 because, 
as with the left knee, this particular issue does not involve 
two or more major joints or two or more minor joint groups.  
Since the veteran's left knee is evaluated separately, an 
increase is not warranted under this criterion.

Under the criteria for limited motion, Diagnostic Codes 5260 
and 5261, the Board also finds that an increase to a 20 
percent disability rating is not warranted.  The evidence has 
consistently shown that the veteran's extension is to 0 
degrees in the right knee.  In order to warrant a 20 percent 
disability evaluation, extension must be limited to 15 
degrees.  None of the evidence demonstrates this level of 
disability.

In addition, for a 20 percent disability rating to be 
warranted for flexion, the veteran's right knee must 
demonstrate limitation to only 30 degrees.  During this time 
period, the veteran's right knee flexion has never been shown 
to be more limited than to 80 degrees.  Therefore, an 
increase to a 20 percent rating is not warranted.

Even evaluating the veteran's extension and flexion in 
conjunction with the criteria associated with DeLuca v. 
Brown, supra, the veteran's flexion was shown to only be 
limited to 90 degrees during his February 2006 VA 
examination, and his extension was not shown to be further 
reduced during flare-ups.  Therefore, an increased rating is 
not warranted under these criteria.


With regard to instability, the Board notes the veteran's 
description of giving way of his knee, and also acknowledges 
that he wears a brace.  However, on objective examination, 
only in November 2003 was the knee diagnosed with mild medial 
laxity.  Otherwise, there is no objective evidence of 
instability of the right knee.  The veteran's knee was 
described as having a negative drawer sign during both the 
November 2003 and February 2006 VA examinations.  In 
addition, it was noted to be stable in February 2006.  
Therefore, while there is some evidence of instability of the 
veteran's right knee, the Board finds that there is not 
enough objective evidence to show that it is moderate, rather 
than slight.  Therefore, an increased rating is not warranted 
for this time period under DC 5257.

Furthermore, the veteran has never been diagnosed with 
ankylosis, dislocated cartilage, or nonunion or malunion of 
the tibia and fibula of his right knee.  Therefore, an 
increased rating is not warranted under these rating 
criteria.

Consequently, the Board finds that the evaluation assigned in 
this decision adequately reflects the clinically established 
impairment experienced by the veteran.  As the evidence 
preponderates against the claim for a compensable rating 
prior to March 28, 2000, and a 10 percent rating from June 1, 
2000, for the veteran's right knee patella alta 
chondromalacia, the benefit-of-the-doubt doctrine is 
inapplicable, and an increased rating must be denied.  
38 U.S.C.A. § 5107(b); Gilbert, supra.

V.  Conclusion

Finally, in view of the Court's holding in Fenderson, the 
Board has considered whether the veteran was entitled to a 
"staged" rating for his service-connected disabilities, as 
the Court indicated can be done in this type of case.  
However, upon reviewing the longitudinal record in this case, 
we find that at no time since the filing of the veteran's 
claims for service connection, in April 1999, have his left 
and right knee patella alta chondromalacia disabilities been 
more disabling than as currently rated under the present 
decision.




ORDER

An initial rating in excess of 10 percent for patella alta 
chondromalacia of the left knee, to include a claim of 
entitlement to a compensable rating prior to March 13, 2001, 
is denied.

An initial rating in excess of 10 percent for patella alta 
chondromalacia of the right knee, to include a claim of 
entitlement to a compensable rating prior to March 28, 2000, 
is denied.



_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs