Citation Nr: 0813856 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-28 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation for chondromalacia of the right patella (right knee disability), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from June 1971 to December 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. In June 2007, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in August 2007 and was remanded for further development. FINDING OF FACT The veteran's service-connected right knee disability is manifested by subjective complaints of pain, with objective demonstration of crepitus and limitation of right knee motion, without demonstration of additional functional limitation due to pain, weakness, incoordination or fatigability, and no clinical evidence of instability, subluxation, or dislocation. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for chondromalacia of the right patella have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5014, 5260, 5261 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 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; (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). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In the present case, VA issued VCAA notice letters dated in April 2003, March 2006, and August 2006 to the appellant. These letters informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was requested to submit any relevant evidence in his possession to VA. The March 2006 and August 2006 letters also informed the veteran as to the law pertaining to assignment of a disability rating and effective date as the Court required in Dingess/Hartman. According to Vazquez-Flores v. Peake, 22 Vet. App. 37, No. 05-0355 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudice. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. In the present case, the claimant demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements by the claimant and the claimant's representative, to include sworn testimony and arguments presented at the October 2005 and June 2007 hearings on appeal, that demonstrate awareness of what was necessary to substantiate the claim. Further, in this regard, the Board notes that the appellant was issued a Statement of the Case in September 2003 which set forth the relevant Diagnostic Codes for rating the disability at issue. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. After the notice was provided, the case was readjudicated and a Supplemental Statement of the Case was provided to the veteran (most recently in November 2007). The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service VA treatment and examination. During the appeal, the veteran testified that all of his right knee treatment has been with VA. (See June 2007 Board hearing transcript "Tr." at 2, 8; October 2005 RO hearing Tr. at 4-5.) Additionally, the claims file contains the veteran's and lay statements in support of his claim, to include testimony at Board and RO hearings. The Board has carefully reviewed his statements and testimony and concludes that there has been no identification of further available evidence not already of record. In a September 2006 VCAA notice response, the veteran stated that he had no other information or evidence to submit to substantiate his claim. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. The veteran testified that he had applied for, but was turned down for Social Security Administration (SSA) benefits. (See June 2007 Board hearing Tr. at 9.) In this regard, the Board notes an October 2005 SSA inquiry that reflects no Title II or Title XVI data was found. A letter from the SSA, dated in June 2006, reveals that the veteran filed for SSA disability in February 2002 and in September 2002, and that he had been denied both times. It was noted that the veteran has never received payments from the SSA. The veteran also testified that he had applied for SSA benefits, in part, because of an accident in which he lost his spleen and injured the left side of his body. (DRO Tr. at 4.) In light of the foregoing, it appears that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board notes that the claims file was not available for review by the VA examiner in April 2003. Even so, the Board finds that the April 2003 VA examination report was adequate for rating purposes and the examiner appeared to consider the veteran's current disability status in view of the veteran's reported medical history, as required by 38 C.F.R. §§ 4.1 and 4.2 (2007). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Analysis The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In a statement received in February 1992, the veteran asserts that an increased evaluation is warranted for his service- connected right knee disability. As the veteran's claim was received by VA in February 1992, the rating period on appeal is from February 1991, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2) (2007). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2007) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the history of the disability is for consideration in rating a disability. Historically, a January 1975 rating decision granted service connection for chondromalacia of the right patella and assigned a 10 percent rating, effective December 18, 1974, under Diagnostic Code 5099-5014, by analogy. The June 2003 rating decision on appeal confirmed and continued the 10 percent rating under Diagnostic Code 5014. At this time, the Board notes that the 10 percent disability evaluation assigned for the veteran's service-connected disability at issue is a protected rating as it has been in effect for more than 20 years. In this regard, any disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951(b) (2007). As just noted, the veteran is assigned a 10 percent evaluation for his service-connected chondromalacia of the right patella by analogy pursuant to Diagnostic Code 5014. 38 C.F.R. § 4.20. Diagnostic Code 5014, for rating osteomalacia, provides that a rating should be based on limitation of motion of the affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5014. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation will be assigned for each such major joint or group of minor joints affected by limitation of motion. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. A 20 percent evaluation will be assigned with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). Note (2) to Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. The Board notes that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. At this time, the Board acknowledges VAOPGCPREC 9-2004 (Sept. 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of the same leg, the veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25 for that leg. Several clinical records address the range of motion of veteran's right knee. Upon VA examination in April 2003, the veteran had flexion of the right knee to 148 degrees with some mild crepitation popping sensation at 144 degrees. Extension was -0 to 8 degrees. A September 2003 VA orthopedic record indicates that the veteran had full active and passive knee range of motion with mild crepitus noted upon range of motion testing of the right knee. A September 2003 VA examination report reflects that the veteran's right knee lacked the last 20 degrees of active extension with pain. His right knee flexed to 120 degrees with pain. Mostly recently, upon VA examination in October 2007, the range of motion of the veteran's right knee was 0-140 degrees with complaint of pain at the end of the motion. Complaints of pain in the front of the knee joint were noted. The VA examiner indicated that repetitive motion over three times did not produce any additional pain or any additional loss of motion. Further, it was noted that there was no evidence or weakness, fatigability or lack of endurance. The 2007 VA examiner opined that the veteran's right knee condition, with complaint of pain, does not significantly limit the functional ability of the joint. The VA examiner further opined that veteran's complaint and the clinical findings do not correlate for any acceptable orthopedic diagnosis and that there are no other specific symptoms attributable to chondromalacia of the right patella or any symptoms referable to any other right knee disability at that time. The examiner noted that there was no objective significant evidence to establish the diagnosis of chondromalacia patella. Based on the objective findings discussed above, the criteria for a compensable evaluation for limitation of motion of the veteran's right knee under Diagnostic Codes 5260 and/or 5261 have not been satisfied. The Board notes the September 2003 right knee range of motion extension finding. While the VA examiner stated that the veteran lacked the last 20 degrees of active extension, the notation of "with pain" appears to indicate that the veteran's extension was not lacking, but that he could extend, but "with pain." Further the Board notes that such a finding appears to be consistent with other evidence of record, to include the subsequent October 2007 VA examination. The Board also notes under the VAOPGCPREC 9- 2004, the evidence must reflect compensable loss of both flexion and extension of the same leg. However, this is not the case here as the veteran, in September 2003, did not have right knee flexion to a compensable degree. Additionally, the Board notes that the September 2003 VA examination report reflects that the veteran's gait was within normal limits. Moreover, even with consideration of additional functional limitation due to factors such as pain and weakness under 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), there has been no demonstration of functional impairment comparable to the criteria for the next-higher rating. The Board acknowledges the veteran's complaints of pain throughout the rating period on appeal. In this regard, at the April 2003 VA examination, the veteran reported joint aches intermittently with increased crepitation with range of motion. The veteran reported that he does not squat or cross his legs while working at his occupation as a carpenter due to pain upon arising and extending his right knee. He reported taking Motrin for overall discomfort with his right knee. The veteran noted that he can kneel on his right knee with the use of protective knee pads. The veteran denied any locking or giving way. The October 2007 VA examination report reflects that the veteran reported a painful right knee, mostly around the joint, but also in the front. He stated that the pain is fairly constant and affected by changes in the weather. The veteran reported taking Tylenol. The examination report indicated that the veteran's activities of daily living are not affected, and his work is also not affected. He used a knee brace while walking. Indeed, the 2007 VA examiner stated that there was no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance with repetitive use. The 2007 VA examiner further stated that there was no impairment of daily occupational activities due to his service-connected complaints. In light of the foregoing, the Board finds that the above complaints of right knee pain have been contemplated by the veteran's current 10 percent disability rating. The Board has further considered whether any other diagnostic code could serve as a basis for a higher rating here. However, as the clinical evidence fails to demonstrate impairment of the tibia or fibula, a higher rating under Diagnostic Code 5262 is precluded. Similarly, the evidence of record fails to establish ankylosis of the right knee, or disability comparable therewith, precluding a higher rating under Diagnostic Code 5256. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the knee joint in a fixed position, either favorable or unfavorable). Under Diagnostic Code 5258, semilunar cartilage that is dislocated with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. A higher rating is not available under this code as the clinical evidence does not reveal dislocated semilunar cartilage of the right knee. Further, the evidence does not reflect that a separate rating for a skin disability is warranted. Indeed, the April 2003 VA examination report revealed no right knee scars. Finally, as will be discussed below, the Board finds that evidence of record throughout the rating period on appeal does not reflect slight instability and therefore separate ratings for arthritis and instability per VAOPGCPREC 23-97 and VAOPGCPREC 9-98 are not for application. See, i.e., VA right knee X- rays, dated in February 1992 and in April 2003 (revealing an unremarkable right knee). The Board has considered whether the veteran is entitled to a separate rating under any other diagnostic code. In this regard, the Board has considered whether Diagnostic Code 5257 affords a compensable rating. Diagnostic Code 5257 contemplates knee impairment characterized by recurrent subluxation or lateral instability. A 10 percent rating is warranted under this diagnostic code for slight impairment. The next-higher 20 percent rating under that diagnostic code section is warranted for moderate impairment. The veteran reported, in the July 2003 notice of disagreement, that he has to use a leg support everyday because his "[right] knee pops out." The April 2003 VA examination report reflects that the veteran had good lateral right knee stability, mild to moderate with the knee stressed. The veteran had a negative drawer and McMurray's maneuver. Although the veteran had tenderness at the medial knee and patellar pain with compression of the patella by the examiner, he had good passive patellar tracking without pain or discomfort, and a painless patellar circular maneuver. A July 2003 VA orthotics note revealed very mild laxity, both sides, medial lateral. There was no anterior drawer sign. The impression was mild medial lateral instability and chondromalacia patella. It was noted that a knee brace would be ordered for the veteran to add medial lateral stability and allow the veteran to use the brace at work, and to give him some patella stabilization. See also September 2003 VA orthopedics note (noting that the veteran's knee pain had been alleviated recently and that he was still awaiting a brace). A report of a September 2003 VA examination reflects that the veteran had a negative drawer sign and no medial or lateral collateral ligament instability. He also had a negative McMurray's test bilaterally. An addendum to a VA physical therapy record, dated in November 2003, revealed that the veteran's right knee did not have any catching, locking, or instability symptoms. See also March 2004 VA urgent care record (noting no ligament laxity upon physical examination). The addendum also noted that an October 2003 MRI of the right knee revealed the collaterals and cruciates to be intact with no clear evidence of meniscal tear. Upon VA examination of the veteran's right knee in October 2007, there was no deformity, and the patellar position was normal. The right knee alignment was normal. The apprehension test was negative and the joint line was nontender. McMurray, drawer, and Lachman tests were each negative. Pivot shift was also negative. The 2007 VA examination report indicated that X-rays of the right knee revealed an essentially normal knee joint without any evidence of malalignment. The Board acknowledges that the record indicated very mild laxity in July 2003, but it finds that the veteran's right knee disability, throughout the rating period on appeal, does not rise to the level of slight impairment of the right knee based on recurrent subluxation or lateral instability. In this regard, the very mild laxity noted in July 2003 does not appear to be recurrent as the September 2003 VA examination report (approximately two months later) reflects that the veteran had a negative drawer sign and no medial or lateral collateral ligament instability with a negative McMurray's test, bilaterally. In conclusion, throughout the rating period on appeal, there is no basis for increased or separate ratings based on instability of the veteran's right knee and the clinical evidence does not show distinct time periods exhibiting symptoms warranting staged evaluations. Hart, 21 Vet. App. at 509-10. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2007) is not warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to a rating in excess of 10 percent for chondromalacia of the right patella, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs