Citation Nr: 0529484 Decision Date: 11/03/05 Archive Date: 11/14/05 DOCKET NO. 04-03 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for latex allergy/sensitivity. 2. Entitlement to a compensable disability rating for hypertension. 3. Entitlement to a compensable disability rating for sinusitis. 4. Entitlement to a higher disability rating for chondromalacia of the right knee, currently rated 10 percent disabling. 5. Entitlement to a higher disability rating for chondromalacia of the left knee, currently rated 10 percent disabling. ATTORNEY FOR THE BOARD M. W. Kreindler, Associate Counsel INTRODUCTION The veteran served on active duty from October 1985 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A November 2002 rating decision denied entitlement to service connection for latex allergy, and denied entitlement to increased disability ratings for service-connected bilateral knee disabilities and sinusitis. A notice of disagreement was filed in January 2003, a statement of the case was issued in February 2004, and a substantive appeal was received in February 2004. A November 2004 rating decision granted service connection for hypertension assigning a noncompensable disability rating. A notice of disagreement was filed in December 2004, a statement of the case was issued in March 2005, and a substantive appeal was received in April 2005. The veteran was scheduled for a travel Board hearing in September 2005, and failed to appear. FINDINGS OF FACT 1. The veteran's latex allergy/sensitivity manifested in service. 2. The veteran's hypertension is not manifested by diastolic pressure predominantly 100 or more, nor systolic pressure predominantly 160 or more. 3. The veteran's sinusitis is manifested by three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; but not manifested by three or more incapacitating episodes per year, requiring prolonged antibiotic treatment, nor more than six non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. 4. The veteran's right knee disability is manifested by x- ray findings of degenerative joint disease, with objective findings of normal range of motion, but subjective complaints of pain at 110 degrees of flexion. 5. The veteran's left knee disability is manifested by x-ray findings of degenerative joint disease, with objective findings of normal range of motion, but subjective complaints of pain at 110 degrees of flexion. CONCLUSIONS OF LAW 1. Latex allergy/sensitivity was incurred in the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2005). 2. The criteria for the assignment of a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2005). 3. The criteria for a 10 percent disability rating (but no higher) for sinusitis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.97, Diagnostic Code 6513 (2005). 4. The criteria for the entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2005). 5. The criteria for the entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the veteran in a VCAA letter issued in May 2002 with regard to the increased rating claims, and in a VCAA letter issued in August 2002 with regard to the latex sensitivity claim. The letters predated the November 2002 rating decision. Subsequently, the veteran was issued another VCAA letter in May 2004. The veteran claimed entitlement to service connection for hypertension in June 2004, and a VCAA letter was issued that same month which predated the November 2004 rating decision. See id. The VCAA letters notified the veteran of what information and evidence is needed to substantiate her claims, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in her possession that pertains to the claims. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The VCAA letters have clearly advised the veteran of the evidence necessary to substantiate her claims. The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the veteran's service medical records and post-service VA and private medical records. There is no indication of relevant, outstanding records which would support the veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). Additionally, the evidence of record contains VA examinations performed in October 2002 and August 2004. The examination reports obtained are thorough and contain sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled with respect to the issues on appeal. I. Service connection: latex sensitivity Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). On an examination performed for induction purposes, the veteran denied any allergies. Service medical records reflect that in June 1995 the veteran underwent a dental procedure. Subsequently, an allergic reaction was noted with symptomatology of red, burning eyes, itching skin and hair, and mucous membranes in nasal passages were swollen. A notation provides a physician's opinion that the reaction was probably unrelated to dental treatment, and probably allergies to something in the environment. A dental health questionnaire reflects a notation of "possible allergy to dental gloves," which appears to have been written by a dental examiner. An October 1999 private prescription record reflects a diagnosis of allergic reaction to latex. A July 2000 private clinical record reflects a "rather severe latex allergy." A February 2001 private clinical record reflects three serious episodes of reaction to latex in the past five years. The first time was in a dental office, the second time was at a hairdressers when she was having hair extensions put in with rubber glue, and the third time was with balloons at a party. Symptoms noted were difficulty breathing, general itching, hives, and swelling of throat. An allergy evaluation revealed that she was markedly allergic to latex dental dam, condom, and glove. An October 2001 private clinical record reflects that the veteran had an allergic reaction to latex while at work. Symptoms resolved a few days later. An October 2001 VA outpatient treatment record reflects the veteran's report that she had two allergic reactions to latex in the past week. VA outpatient treatment records dated in December 2003 reflect that an examiner spoke with the veteran who reported an allergic reaction after eating a salad at a restaurant. She was told that the restaurant used latex when preparing the food. She sought treatment at an emergency room, and was instructed to take Benadryl and pepcid for two days. The veteran's entrance examination is negative for any notations regarding an allergy to latex. Specifically, the veteran denied any allergies. Consequently, the veteran is presumed to have entered service in sound condition as it pertains to any allergies. 38 U.S.C.A. § 1132. Service medical records reflect that the veteran suffered an allergic reaction subsequent to a dental procedure, which a dental examiner opined was possibly related to an allergy to latex. Subsequent to service, private allergy evaluation reflects a latex allergy, and four allergic reactions to latex since separation from service. From a review of the medical evidence of record, it appears that the symptomatology related to an allergic reaction to latex subsides after a few days, and only has an onset when there is exposure to latex. Thus, it is questionable as to whether the veteran has a chronic disability as the allergic manifestations appear to subside without residuals. Based however on the fact that the first reported incident occurred in service, and the evidence of record contains subsequent reports of allergic reaction, the Board has determined that service connection is warranted for allergic reaction to latex. Service connection is therefore warranted on this basis. II. Increased disability evaluations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as with regard to the hypertension issue, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Hypertension A November 2004 rating decision granted service connection for hypertension and assigned a noncompensable disability rating under Diagnostic Code 7101. 38 C.F.R. § 4.104, Diagnostic Code 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension) provides a 60 percent rating if the diastolic pressure is predominantly 130 or more, a 40 percent rating if the diastolic pressure is predominantly 120 or more, a 20 percent rating if the diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more, and a 10 percent rating if the diastolic pressure is predominantly 100 or more or systolic pressure is predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A November 2001, VA outpatient treatment record reflects a blood pressure reading of 121/87. An October 2003, VA outpatient treatment record reflects a blood pressure reading of 134/100, and in November 2003 a blood pressure reading of 150/97. A December 3, 2003, VA outpatient treatment record reflects that the veteran was prescribed Atenolol for blood pressure. A December 9 outpatient record reflects that the veteran was told to hold off on taking Atenolol when it arrived as she may not need it. A February 9, 2004, VA outpatient treatment record reflects a blood pressure reading of 138/97 while sitting, and three minutes later a reading of 139/95 while sitting. The next day, the veteran telephoned and reported a blood pressure reading of 135/95. The veteran indicated that she was not taking blood pressure medication at that time. In March and April 2004, her blood pressure readings were 141/99 and 139/94, respectively. An August 19, 2004, VA outpatient treatment record reflects that the veteran's blood pressure was elevated a few months the previous fall. Atenolol was ordered and then stopped in December 2003 as blood pressure had returned to normal. The outpatient record reflects a blood pressure reading of 146/92. On August 24, 2004, her blood pressure reading was 114/86. On August 30, 2004, the veteran underwent a VA examination. With regard to hypertension, the veteran reported a diagnosis of hypertension in 1995. The examiner noted that a year prior to the VA examination, her blood pressure was higher, but the veteran reported that she was being monitored and was not on medication. She denied any shortness of breath or chest pain. In March or February 2004, she was treated at the VA for chest pains and was given nitroglycerin under the tongue. She reported that the blood pressure was high and the EKG was normal. She denied being on medication for blood pressure. On physical examination, the veteran's blood pressure in the right arm while sitting was 160/100, and recumbent 160/92, and in the left arm was 140/102. There was no pedal edema. The examiner diagnosed hypertension, not on medication, and a normal EKG. In an August 2004 addendum, the examiner stated that service medical records had been reviewed and noted blood pressure readings during her period of service. Based on these findings, the examiner opined that the veteran's diagnosed hypertension was as likely as not related to service. On August 31, her blood pressure readings were 122/83, 122/100, 122/100. A VA outpatient treatment record reflects that in October 2004, her blood pressure reading was 132/89. A November 2004 blood pressure check was reported as 114/86. The evidence in this case demonstrates that the veteran's hypertension does not manifest in disability that more nearly approximates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, as contemplated by a 10 percent rating under Diagnostic Code 7101. 38 C.F.R. § 4.104, Diagnostic Code 7101. Thus, a compensable rating is not warranted. Based on the blood pressure readings recorded above, the veteran's systolic readings were recorded at 160 on examination in August 2004. Otherwise, blood pressure readings have reflected systolic pressure well below 160. Although the veteran's diastolic pressure has been 100 or more at times, this does not constitute a "predominant" reading of 100 or more, as contemplated by the rating criteria. Specifically, in October 2003 the veteran's diastolic pressure was 100. Upon review of the entirety of the veteran's blood pressure readings taken mainly in late 2003 and 2004, the diastolic pressure is predominantly below 100. As a result, the evidence does not meet the criteria for a compensable rating as only five out of twenty of the recordings of diastolic pressure measured over 100, and only two recordings of systolic pressure measured at 160. The veteran's service medical records also do not reflect a history of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Additionally, although VA outpatient treatment records reflect that the veteran has taken medication intermittently to control her high blood pressure, there is no indication that she has required continuous medication to control her blood pressure. Apparently, the veteran stopped taking blood pressure medication in December 2003 because there was objective determination that she did not need it to control her blood pressure. At the time of the August 2004 VA examination she was not taking blood pressure medication. The assignment of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the veteran's service-connected hypertension has resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation, or has necessitated frequent periods of hospitalization. In fact, it appears that the veteran has never been hospitalized for treatment of her service- connected hypertension. Accordingly, the Board finds that the impairment resulting from the veteran's hypertension is appropriately compensated by the currently assigned schedular rating and 38 C.F.R. § 3.321 is inapplicable. Consequently, the Board finds that no further action on this matter is warranted. In summary, for the reasons and bases expressed above, the Board has concluded that an initial compensable rating is not warranted for the veteran's service-connected hypertension. Accordingly, the benefit sought on appeal is denied. Sinusitis Under Diagnostic Code 6513 a noncompensable evaluation is assigned for sinusitis that is detected by an x-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6513. In February 2001, the veteran underwent a private allergy evaluation. She reported chronic sinus problems for the past five years. She reported symptoms of nasal congestion and sinus headaches. Intermittently she reported itchy, red eyes. Upon allergy evaluation, the assessment was perennial allergic rhinitis. An August 2001 private outpatient treatment record reflects that the Claritin that she was taking to control her allergy symptoms was effective. She had not taken the medication for the past month. She reported sneezing, rhinorrhea and congestion. The past week her symptoms had worsened with maxillary sinus pain, fatigue, headaches, postnasal drainage, sore throat and dysphonia. On physical examination, conjunctiva was mildly injected. There was tenderness across the maxillary sinuses. There was nasal mucosa edematous and erythematous. The oropharynx was clear. The neck was supple with mildly tender tonsillar nodes. The lungs were clear without wheezes. A sinus x-ray revealed mild haziness at the base of the maxillary sinuses. The examiner's impression was allergic rhinitis, symptomatic off medications, and acute sinusitis. In October 2002, the veteran underwent a VA examination. The veteran reported a 14 year history of sinonasal disease, worse in the previous 7 years. She complained of chronic sinonasal congestion, greater on the right side, but alternating in sides with decreased breathing ability through the nose. She had some purulent discharge, but otherwise had mucosal nasal drip. She reported occasional shortness of breath with almost asthma-like symptoms. She had been treated with Nasonex and Allegra, and reported currently taking these medications. She reported allergy attacks two to three times per day and sometimes even more frequent. At the August 2004 VA examination, the veteran claimed seasonal allergies since 1996, which had gotten worse in the previous three years. She claimed developing a sinus infection at least three to four times a year and treating with antibiotics. Since August 19, she had been treated for a sinus infection and was taking antibiotics. She denied any nasal polyp or breathing obstruction. She reported developing some headaches over the eyes with the sinus problem. On physical examination, the nose, sinuses, mouth, and throat showed some tenderness of the right maxillary and paranasal sinus. She had a nasal polyp on the right nasal with more than 40 percent breathing obstruction. On the left there was a small nasal polyp with less than 40 percent breathing obstruction. The throat was clear, within normal limits. The examiner diagnosed allergic rhinitis with sinusitis currently on antibiotic treatment with nasal polyp on the right with more than 40 percent breathing obstruction; on the left less than 40 percent breathing obstruction. An x-ray examination was normal. Based upon the evidence of record, the Board finds the veteran's sinusitis is presently manifested by chronic symptomatology of three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. On examination, in August 2001 she reported sneezing, rhinorrhea and congestion, and during one week symptoms of maxillary sinus pain, fatigue, headaches, postnasal drainage, sore throat and dysphonia. The examiner diagnosed allergic rhinitis symptomatic off medication, and chronic sinusitis. On examination in October 2002, the examiner observed some purulent discharge. At the August 2004 VA examination, the veteran reported a sinus infection three to four times per year requiring antibiotics manifested by sinus headaches. Based on the subjective reports of the veteran and objective findings, the Board finds that a 10 percent disability rating is warranted for service-connected sinusitis. The Board finds, however, that a disability rating in excess of 10 percent is not warranted. The evidence does not support a findings of three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or more than six non- incapacitating episodes per year of sinusitis characterized by headaches, pain and purulent discharge or crusting. In reaching this decision, the Board does not find that an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order for sinusitis. The evidence in this case is against showing that the disability causes a marked interference with her employment, and there is no evidence that the veteran has been hospitalized due to her sinusitis. Accordingly, the Board finds that the impairment resulting from the veteran's sinusitis is appropriately compensated by the currently assigned schedular rating and 38 C.F.R. § 3.321 is inapplicable. In summary, the Board has concluded that a 10 percent disability rating, but no higher, is warranted for the veteran's service-connected sinusitis. Knees It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, pertaining to "other impairment of the knee," a 10 percent rating is warranted for slight knee impairment (recurrent subluxation or lateral instability). A 20 percent rating contemplates a moderate degree of impairment, and a maximum 30 percent rating is warranted for a severe degree of impairment to the knee. A January 1997 rating decision granted service connection for chondromalacia of the knees, assigning 10 percent disability ratings effective June 23, 1996. The 10 percent disability ratings were assigned pursuant to Diagnostic Code 5260, limitation of flexion. Private clinical records from Dr. Jeff K. Blixt, reflect notations of severe inflammatory arthritis in both knees. A July 2000 private clinical report from Dr. Robert A. Brumfield, reflects that ten days earlier the veteran was running and had a marked increase in her pain in the knees. On physical examination, she stood with increased genu valgus bilaterally and she had moderate flattening of the medial longitudinal arches. The Q angle in the supine position was 16 bilaterally. Recurvatum was noted of both knees. She had full range of motion of the knees, with no instability. She had very positive patellar grind and inhibition tests bilaterally. There was very little crepitation in the knees, perhaps 1+ in the right knee in the terminal 20 degrees of extension. There was tenderness over the posteromedial joint lines bilaterally. The meniscal maneuvers were negative. There was good stability and no effusion. The left knee was noted to be very tender over the pes anserinus bursa. On x- ray examination, merchant views of the knees showed a slight lateral tilt of the patellae with little or no shifting. The trochlear grooves were well-formed. The lateral views of the knees were unremarkable. The Rosenberg views showed a slight narrowing of the medial compartments bilaterally, with no sclerosis or osteophyte formations. The assessment was bilaterally patellofemoral pain syndrome, possible degenerative and torn medial menisci bilaterally, and pes anserinus bursitis left. A March 2001 VA outpatient treatment record reflects complaints of persistent right knee pain. She complained of increased pain with ascending or descending stairs, and knees locking and giving way. A December 2001 VA outpatient treatment record reflects complaints of left knee stabbing pain which began three days prior. She denied any recent falls. She hyperextended the left knee while walking a week prior, the knee "locked up" and she was finally able to flex after several attempts. On examination, the left knee was very tender all around the patellar, and there was mild erythema. The diagnosis was left knee pain. An August 2002 VA outpatient treatment record reflects complaints of right knee pain and to a lesser degree left knee pain. The examiner noted that the veteran had been issued a cane in the past and she was walking with it at the time of the examination. On physical examination, the knee had increased Q angles on both knees, but the right one was the greatest with 14 degrees and the left one had 8 degrees. She was fitted with a patellar stabilizing brace, and a knee brace was ordered for the left knee. In October 2002, the veteran underwent a VA examination of the knees. On physical examination, both knees had a moderate degree of swelling. Range of motion of both knees was from 0 to 125 degrees. There was no laxity of the joint. There was negative drawer sign, and negative grind sign. The diagnostic impression was degenerative joint disease of both knees. X-rays were on file with range of motion as described with no evidence of fatigability nor incoordination. A March 2004 VA outpatient treatment record reflects that the veteran telephoned complaining that her right knee was swollen and it was difficult to go up and down the stairs. She reported pain when walking or bending the knee. The veteran underwent another VA examination in August 2004. She complained of knee pain almost on a daily basis, increased by cold weather, going up stairs, prolonged bending, and walking distance. Following repetitive use, she complained of decreased motion mainly because of pain and stiffness. She denied any fatigue, impaired endurance or weakened movement. She reported flare up of the knees three times a week and usually at night the knee hurts and wakes her up. She denied any use of brace or cane, but in the past used a cane when the knee got bad. On physical examination, she walked with a slow gait. She had no difficulty arising from a chair, or changing positions on the examination table. Carriage and posture were within normal limits. Gait was reciprocal but slow. She could squat down and rise up complaining of pain in both knees. She had tenderness on patellofemoral compression of both knees. Ligaments were stable on valgus and varus stress bilaterally. Negative drawer sign, and negative Lachman sign was also noted bilaterally. Range of motion was 0 to 125 degrees, extension to flexion with pain in both knees. Following repetitive testing she complained of increased pain, no fatigue, no impaired endurance, and no weakened movement. The examiner diagnosed right and left knee chondromalacia, degenerative joint disease with limited motion. The examiner opined that in consideration of DeLuca, an additional 10 to 15 degree loss of flexion should be added to the knees following repetitive use and during flare-ups mainly because of pain. There was no fatigue, no impaired endurance, and no weakened movement noted. The RO assigned separate 10 percent disability ratings to the veteran's bilateral knee disabilities under the provisions of 38 C.F.R. § 5260, for limitation of flexion. As the objective evidence of record reflects a diagnosis of degenerative joint disease, the veteran's disabilities should be rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, the rating for arthritis of a joint is based on limitation of motion. Thus, the veteran's disabilities will still require rating under the limitation of motion criteria, Diagnostic Codes 5260 and 5261. Objective physical examination has revealed range of motion of 0 to 125 degrees. Thus, such objective findings do not support a compensable rating under the rating criteria for Diagnostic Codes 5260 and 5261. Though a compensable rating is not warranted under the rating criteria, the currently assigned 10 percent disability ratings are supported by the DeLuca provisions. As previously noted, when evaluating musculoskeletal disabilities on the basis of limitation of motion, functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is to be considered in the determination of the extent of limitation of motion. 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-07. The veteran has reported pain and swelling, including pain when walking or bending. Although the veteran complained of pain associated with the disabilities at issue, "[a] finding of functional loss due to pain must be 'supported by adequate pathology and evidenced by the visible behavior of the claimant.'" 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As noted, range of motion findings of both knees was 0 to 125 degrees, however, the August 2004 examiner opined that an additional 10 to 15 degrees loss of flexion would be added to the knees following repetitive use and during flare-ups due to pain. The Board finds that, when considering the veteran's pain on motion, a 10 percent rating is warranted for each knee under limitation of motion. The objective medical evidence, however, does not support findings of pain on motion of the right knee or left knee to such degree as to satisfy the requirements for a higher evaluation. Thus, the Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. According to a recent General Counsel opinion, separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). However, in the present case there is no evidence that a compensable rating is warranted under the criteria of Codes 5260 and 5261 for either knee. There are no findings that pain limits extension, and flexion is not limited to 45 degrees by pain to warrant a separate 10 percent rating under Code 5260 for either knee. The Board has also given consideration to the possibility of assigning separate evaluations for the veteran's service- connected right and left knee disabilities under Diagnostic Codes 5003 and 5257. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997) [a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability]; VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998) [if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59]. See also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) [separate disabilities arising from a single disease entity are to be rated separately]; but see 38 C.F.R. § 4.14 [the evaluation of the same disability under various diagnoses is to be avoided]. In this case, however, a compensable rating is not warranted under Diagnostic Code 5257 with respect to the veteran's right knee and left knee disabilities. Objective examination does not show instability or subluxation in the right or left knee. Thus, a compensable evaluation is not warranted under Diagnostic Code 5257. The Board has also determined that there is no other diagnostic code which could provide a higher rating for the veteran's right and left knee disabilities. See Schafrath, 1 Vet. App. at 594. Diagnostic Code 5256 provides for a rating in excess of 10 percent, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the right or left knee. Furthermore, the veteran may not be rated by analogy to this code as he does not suffer functional immobility of either knee. Likewise, Diagnostic Codes 5258 and 5259 are inapplicable, as the clinical evidence does not show that cartilage has been removed or dislocated. Although the veteran has reported "locking" on occasion, objective examination does not reflect locking or effusion. Diagnostic Code 5262 is inapplicable as there is no evidence of impairment of tibia or fibula of either leg. With regard to Diagnostic Code 5263, on examination in July 2004, the examiner noted that the veteran stood with increased genu valgus bilaterally and had moderate flattening of the medial longitudinal arches. Recurvatum was observed with regard to both knees. The rating criteria under this diagnostic criteria, however, does not contemplate a disability rating in excess of 10 percent. The assignment of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the veteran's service-connected knee disabilities have resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation, or has necessitated frequent periods of hospitalization. In fact, it appears that the veteran has never been hospitalized for treatment of his service- connected knee disabilities. Accordingly, the Board finds that the impairment resulting from the veteran's knee disabilities is appropriately compensated by the currently assigned schedular rating and 38 C.F.R. § 3.321 is inapplicable. In summary, for the reasons and bases expressed above, the Board has concluded that a higher increased rating is not warranted for the veteran's service-connected right knee disability and left knee disability. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to service connection for latex allergy is warranted. Entitlement to a 10 percent disability rating for sinusitis is warranted. To this extent, the appeal is granted. Entitlement to a compensable disability rating for hypertension is not warranted. Entitlement to a disability rating in excess of 10 percent for a chondromalacia of the right knee is not warranted. Entitlement to a disability rating in excess of 10 percent for a chondromalacia of the left knee is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs