Citation Nr: 0819327	
Decision Date: 06/11/08    Archive Date: 06/18/08

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 
(DAV)


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 by 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.  In a November 2006 decision, the 
Board denied the veteran's claims listed above.  The veteran 
subsequently appealed this issue to the United States Court 
of Appeals for Veterans Claims (Court).  While that case was 
pending at the Court, the veteran's attorney and the VA 
Office of the General Counsel filed a joint motion to vacate 
the Board's decision and remand the veteran's claims for 
readjudication.  In a December 2007 Order, the Court granted 
the joint motion, vacated the Board's November 2006 decision, 
and remanded this case to the Board for readjudication.

The Joint Motion indicated that one of the reasons for remand 
was that the Board had not discussed the veteran's 
eligibility for a total disability rating based on individual 
unemployability (TDIU).  The Joint Motion identified several 
written statements and treatment records in which the veteran 
indicated he could not work due to his knee disabilities.  
Therefore, the Joint Motion indicated that the Board should 
consider the veteran's eligibility for TDIU.

The Board notes that the RO did adjudicate the veteran's 
claim of entitlement to TDIU in the February 2003 rating 
decision.  With the exception of one written statement, all 
of the evidence mentioned in the Joint Motion was associated 
with the claims file prior to that rating decision.  In April 
2003, the veteran submitted his notice of disagreement with 
the increased rating claims listed above.  The veteran did 
not express disagreement with the denial of entitlement to 
TDIU.  Therefore, the RO, correctly, did not issue a 
statement of the case (SOC) on this issue, and the veteran 
never appealed it to the Board.  However, the veteran 
indicated in this written statement that there was no way for 
him to work in his condition.  In compliance with the Joint 
Motion, the Board will interpret this statement as raising a 
new claim of entitlement to TDIU.  Therefore, this issue is 
referred to the RO for appropriate action on his TDIU claim.


FINDINGS OF FACT

1.  The veteran's left knee patella alta chondromalacia was 
characterized only by patellofemoral pain prior to March 13, 
2001.

2.  On and after March 13, 2001, the veteran's left knee 
patella alta chondromalacia has been shown to be 
characterized by a diagnosis of degenerative joint disease, 
with flexion limited to 70 degrees after repetitive testing.

3.  The veteran's left knee disability is also manifested by 
slight lateral instability, as first shown on VA examination 
on November 5, 2003.

4.  The veteran's right knee disability was manifested by 
arthritis and painful motion prior to March 28, 2000.




5.  Throughout the claim and appeal period, the veteran's 
right knee patella alta chondromalacia has been characterized 
by a diagnosis of degenerative joint disease, with flexion 
limited to no more than 80 degrees.

6.  The veteran's right knee disability is also manifested by 
slight lateral instability, as first shown on VA examination 
on November 5, 2003.


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. 2007); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.59, 4.71a, 
Diagnostic Code 5003 (2007).

2.  Left knee instability is 10 percent disabling, effective 
from November 5, 2003.  38 U.S.C.A. § 1155, 5107(b) (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.2, 4.7, 4.10, 
4.71a, Diagnostic Code 5257 (2007).

3.  The criteria for an initial 10 percent rating for 
chondromalacia of the right knee are met, prior to March 28, 
2000.  38 U.S.C.A. § 1155, 5107(b) (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 4.2, 4.7, 4.10, 4.59, 4.71a, Diagnostic 
Code 5003 (2007).

4.  The criteria for a rating in excess of 10 percent for 
patella alta chondromalacia of the right knee, on and after 
June 1, 2000, are not met.  38 U.S.C.A. § 1155 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.59, 4.71a, 
Diagnostic Code 5003 (2007).

5.  Right knee instability is 10 percent disabling, effective 
from November 5, 2003.  38 U.S.C.A. § 1155, 5107(b) (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.2, 4.7, 4.10, 
4.71a, Diagnostic Code 5257 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, 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 notice from VA 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 her 
or his possession that pertains to the claim in accordance 
with 38 C.F.R. § 3.159(b)(1).  This notice must be provided 
prior to an initial unfavorable decision on a claim by the 
RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a 
service connection claim: (1) veteran status; (2) existence 
of disability; (3) connection between service and the 
disability; (4) degree of disability; and (5) effective date 
of benefits where a claim is granted.  Dingess v. Nicholson, 
19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of 
the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Moreover, where there is an uncured 
timing defect in the notice, subsequent action by the RO 
which provides the claimant a meaningful opportunity to 
participate in the processing of the claim can prevent any 
such defect from being prejudicial.  Mayfield v. Nicholson, 
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed to be prejudicial.  VA then 
bears the burden of rebutting the presumption, by showing 
that the essential fairness of the adjudication has not been 
affected because, for example, actual knowledge by the 
claimant cured the notice defect, a reasonable person would 
have understood what was needed, or the benefits sought 
cannot be granted as a matter of law.  Sanders v. Nicholson, 
487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. 
March 21, 2008) (No. 07-1209).

A letter dated in August 2005 notified the veteran that VA 
would make reasonable efforts to obtain evidence necessary to 
support his claims.  He was informed that he was required to 
provide sufficient information to allow VA to obtain records.  
He was asked to identify any VA or private medical treatment.  
The various types of evidence that might support his claims 
were listed.  The letter outlined VA's responsibilities with 
respect to obtaining evidence on the veteran's behalf.  The 
veteran was informed of what the evidence needed to show in 
order to substantiate a claim for an increased rating.  He 
was asked to submit any evidence in his possession that 
pertained to his claims.

The Board finds that the content of the August 2005 letter, 
provided to the veteran after the Board's July 2005 remand, 
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 and assist 
at that time.  Subsequently, the March 2006 SOC explained the 
basis for the RO's action, and provided him with an 
additional 60-day period to submit more evidence.  Then the 
now-vacated Board decision further discussed the VCAA 
requirements.  The veteran was represented by an attorney in 
the Court proceedings, and then dropped out of the matter.  
After the Court's remand, the Board wrote the veteran and his 
DAV representative in February 2008 to again solicit any and 
all additional evidence and/or argument which they might wish 
to submit.  In May 2008 the representative filed a brief on 
the veteran's behalf. 

It thus appears that all obtainable evidence identified by 
the veteran relative to his claim 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.  It is therefore the Board's 
conclusion that the veteran has been provided with every 
opportunity to submit evidence and argument in support of his 
claims, and to respond to VA notices.

Moreover, the veteran and his representative have 
demonstrated actual knowledge of, and have acted upon, the 
information and evidence necessary to substantiate the 
pending claim.  See, e.g., Dalton v. Nicholson, 21 Vet. App. 
23, 30 (2007) (Court was convinced that the appellant and his 
representative had demonstrated actual knowledge of the 
information and evidence necessary to establish the claim).  
Any presumption of error as to VCAA notice has thus been 
rebutted in this case.  See Sanders, supra.  

Accordingly, we find that VA has adequately satisfied its 
duty to assist the veteran in apprising him as to the 
evidence needed, and in obtaining evidence pertinent to his 
claim under the VCAA.  Therefore 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 benefits flowing 
to the veteran.  The Court of Appeals for Veteran Claims has 
held that such remands are to be avoided.  Sabonis v. Brown, 
6 Vet. App. 426, 430 (1994).

II.  Applicable Law and Regulations

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. 2007).  Separate rating codes identify the various 
disabilities. 38 C.F.R. Part 4 (2007).  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 at 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.  Therefore, 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).

When all the evidence is assembled, VA is responsible for 
determining 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 
a claim, in which case, the claim is denied.  38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 
49 (1990).

III.  Increased Ratings

A.  Left Knee

The veteran's left knee disability has been rated as 
noncompensable (zero percent) from April 22, 1999, and at 10 
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 
that time.  Since the veteran was not shown to have X-ray 
evidence of arthritis until March 2001, the Board finds that 
his left knee disability does not warrant a compensable 
evaluation under DC 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 only other evidence existing prior to March 
13, 2001, showed that the veteran complained of pain in his 
knee.  The provider indicated that the veteran had arthritis 
in both knees but did not base this conclusion on an X-ray 
finding.

In addition, the evidence as to the veteran's left knee 
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.

A March 13, 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 said 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, which states that arthritis should be evaluated based 
on limitation of motion, 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 flex to only 70 degrees.


In order to warrant an increase to a 20 percent disability 
evaluation, the veteran must demonstrate the functional 
equivalent of 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.  Even when the Board 
considers the effect of pain, fatigability, lack of 
endurance, and pain on motion, the veteran's left knee 
disability does not warrant such an increased rating under 
the criteria of DCs 5260 and 5261.

When limitation of motion is noncompensable, as is the case 
here, the veteran is entitled to a rating of 10 percent for 
each major joint under Diagnostic Code 5003.  Such is the 
rating the veteran currently has for his left knee.

With regard to evaluating the veteran for instability, he 
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.

Based upon the evidence of record, the Board finds that the 
evidence shows the veteran experiences slight lateral 
instability of his left knee.  Thus, he is entitled to a 
separate 10 percent disability rating for this instability 
under Diagnostic Code 5257.  See VAOPGCPREC 23-97 (July 1, 
1997), published at 62 Fed. Reg. 63,604 (1997).  No more than 
a 10 percent rating is warranted for slight recurrent 
subluxation or lateral instability of the 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, a separate 10 percent rating, and no more, is 
warranted, from November 5, 2003, the date of the VA 
examination at which he first complained of instability and 
it was noted by the examiner.

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, ratings 
are not warranted under these criteria.

Consequently, the Board finds that the evidence preponderates 
against the claim for a compensable rating prior to March 13, 
2001, and against an increase in the 10 percent rating 
assigned by the RO from that date under Diagnostic Code 5003, 
for the veteran's left knee patella alta chondromalacia with 
arthritis and limitation of motion.  However, the Board also 
finds that, resolving reasonable doubt in favor of the 
veteran, his left knee disability warrants a separate 10 
percent rating for instability, under DC 5257, effective from 
November 5, 2003. 

B.  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 effusion 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 warrants a 10 percent disability rating because 
his disability was manifested by periarticular pathology 
productive of painful motion.  He was shown to have X-ray 
evidence of arthritis and complained of pain on motion of his 
right knee.  Therefore, the veteran is entitled to at least 
the minimum compensable evaluation and, as a result, a 10 
percent rating is warranted prior to March 28, 2000.  38 
C.F.R. § 4.59.

However, during that time period, the veteran demonstrated no 
other diagnoses or symptoms related to his right knee 
disability, including limitation of motion.  Therefore, a 
higher initial 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 was noted 
to have 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 under the criteria for limited motion, 
DCs 5260 and 5261, 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 that 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 the 
pertinent 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 finds that the evidence 
shows the veteran experienced slight lateral instability of 
his right knee.  As a result, he is entitled to a separate 10 
percent disability rating for this instability under 
Diagnostic Code 5257.  See VAOPGCPREC 23-97, supra.  However, 
the Board finds that only a 10 percent rating is warranted 
for slight recurrent subluxation or lateral instability of 
the right 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, a separate 10 percent rating, and no 
more, is warranted.

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, ratings 
are not warranted under those criteria.

In summary, the Board finds that, with consideration of the 
reasonable-doubt doctrine, a 10 percent rating should be 
assigned for painful motion under DC 5003 and 38 C.F.R. 
§ 4.59, prior to March 28, 2000, for the veteran's right knee 
patella alta chondromalacia.  The evidence preponderates, 
however, against an increase in the 10 percent rating 
assigned by the RO under those provisions for the veteran's 
right knee disability on and after the expiration of his 
temporary total rating on June 1, 2000.  The Board also finds 
that, resolving reasonable doubt in his favor, the veteran's 
right knee disability warrants a separate 10 percent rating 
under Diagnostic Code 5257, effective from November 5, 2003.

IV.  Conclusion

With regard to Fenderson v. West, 12 Vet. App. 119 (1999), 
the Board finds that staged ratings are warranted, as have 
been specifically assigned herein.


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.

A separate 10 percent rating for lateral instability of the 
left knee is granted, effective from November 5, 2003, 
subject to the law and regulations governing the payment of 
monetary benefits.


[Continued on Next Page]


An initial 10 percent rating for patella alta chondromalacia 
of the right knee is granted, prior to March 28, 2000.

A rating in excess of 10 percent for patella alta 
chondromalacia of the right knee, on and after June 1, 2000, 
is denied.

A separate 10 percent rating for lateral instability of the 
right knee is granted, effective from November 5, 2003, 
subject to the law and regulations governing the payment of 
monetary benefits.



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


 Department of Veterans Affairs