Citation Nr: 0814796	
Decision Date: 05/05/08    Archive Date: 05/12/08

DOCKET NO.  06-08 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to an evaluation greater than 20 percent for 
arthroscopy of the right knee with partial right lateral 
meniscectomy and anterior cruciate ligament reconstruction.


ATTORNEY FOR THE BOARD

Christopher Murray, Associate Counsel










INTRODUCTION

The veteran had active military service from June 1988 to May 
1997.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a September 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Muskogee, Oklahoma.


FINDINGS OF FACT

1.	The veteran's right knee disability, arthroscopy with 
partial right lateral meniscectomy and anterior cruciate 
ligament reconstruction, is manifested by moderate lateral 
instability.  There is no evidence of compensable 
limitation of motion; ankylosis; subluxation or more than 
slight laxity; or impairment to the tibia or fibula.

2.	The veteran has arthritis of the right knee, established 
by x-ray findings, related to his service connected right 
knee disability, with objective evidence of painful 
motion.


CONCLUSIONS OF LAW

1.	The criteria for a rating in excess of 20 percent for 
arthroscopy of the right knee with partial right lateral 
meniscectomy and anterior cruciate ligament reconstruction 
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 
5257 (2007).

2.	The criteria for a separate rating of 10 percent for 
arthritis of the right knee have been met. 38 U.S.C.A. § 
1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Code 5003 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA 
receives a complete or substantially complete application for 
benefits, it must (1) notify the claimant of the information 
and evidence not of record that is necessary to substantiate 
a claim, (2) which information and evidence VA will obtain, 
(3) and which information and evidence the claimant is 
expected to provide.  38 U.S.C.A. § 5103(a) (West 2002).  (4) 
VA must also request that the claimant provide any evidence 
in the claimant's possession that pertains to a claim.  38 
C.F.R. § 3.159 (2007).  See also Pelegrini v. Principi, 18 
Vet. App. 112, 120-21 (2004) (Pelegrini II).  

Regarding VCAA notice elements two through four, the Board 
finds that March and July 2005 notice letters fully satisfied 
these duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  In this regard, these notice letters 
requested that the veteran provide enough information for the 
RO to request records from any sources of information and 
evidence identified by the veteran.  He was also expressly 
advised of the need to submit any evidence in his possession 
that pertains to the claim decided herein.  Finally, these 
letters advised the veteran what information and evidence 
would be obtained by VA, namely, records like medical 
records, employment records, and records from other Federal 
agencies.  

During the pendency of this appeal, the Court of Appeals for 
Veterans Claims (Court) issued a decision in Vazquez-Flores 
v. Peake, 22 Vet. App. 37 (2008), which held that, for an 
increased compensation claim, section 5103(a) requires first 
element notice which, at a minimum, notifies the claimant 
that he 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 his 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.  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.  Vazquez-Flores, 22 Vet. App. at 41. 

In the instant case, the veteran was provided pertinent 
information in the March and July 2005 VCAA notice letters.  
Specifically, these letters informed the veteran of the need 
to provide on his own, or by VA, medical or lay evidence 
demonstrating a worsening or increase in severity of the 
disability.  The Board acknowledges that the March and July 
2005 letters did not make reference to specific diagnostic 
codes or applicable criteria necessary to warrant an 
increased rating which might not be evident from 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening on his 
employment and daily life.  However, the veteran was provided 
notice of applicable rating criteria involving specific 
measurements or testing results, namely, range of motion 
testing, in the January 2006 statement of the case.  

The Board also acknowledges the March and July 2006 letters 
did not specifically inform the veteran that he must provide 
evidence demonstrating the effect any worsening of his 
service-connected disability has on his daily life.  However, 
the Board concludes that the veteran demonstrated actual 
knowledge of the need to submit evidence regarding the impact 
of his disability on his daily life at an August 2007 VA 
examination, in which the veteran stated that after strenuous 
activity, like a gym workout, he will have swelling of the 
knee that he treats with elevation, rest and ice.  Under 
these circumstances, the Board finds that any VCAA notice 
error with respect to this provision of first element notice 
is non-prejudicial to the veteran, and that the Board may 
proceed with its decision.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007) (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, 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).  

The Board notes that the January 2006 statement of the case 
was sent subsequent to the initial unfavorable agency 
decision in September 2005.  However, the Board finds that 
any timing defect with regard to VCAA notice was harmless 
error.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Mayfield v. Nicholson, 20 Vet. App. 537 (2006).  In this 
regard, the information provided to the veteran by this 
statement of the case fully complied with the requirements of 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the 
notice was provided, the case was readjudicated and April and 
November 2007 supplemental statements of the case were 
provided to the veteran.  See Mayfield v. Nicholson, 19 Vet. 
App. 103, 121 (2005); rev'd on other grounds, Mayfield v. 
Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (a (supplemental) 
statement of the case that complies with all applicable due 
process and notification requirements constitutes a 
readjudication decision).

In Vazquez-Flores, supra, the Court 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."  Id.  See also Bernard v. Brown, 4 Vet. App. 
384, 394 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994) (remands which would only result in unnecessarily 
imposing additional burdens on VA with no benefit flowing to 
the veteran are to be avoided).

As a final matter, the Board notes that the veteran was not 
provided notice regarding the evidence and information 
necessary to establish a disability rating and effective date 
in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 
484 (2006).  However, the Board has concluded that the 
preponderance of the evidence is against the veteran's claim 
for an increased evaluation based on lateral instability.  
Therefore, any questions as to the appropriate disability 
rating or effective date to be assigned have been rendered 
moot, and the absence of notice regarding these elements 
should not prevent a Board decision on this issue.  With 
respect to a separate evaluation for degenerative arthritis 
of the right knee, the Board has rendered a decision fully 
favorable to the veteran.  As such, any question as to the 
disability rating to be assigned has been rendered moot.  As 
for the appropriate effective date to be assigned, lack of 
notice on this element is non-prejudicial to the veteran, as 
he may appeal the effective date assigned by the RO should he 
disagree and be provided with notice at that time.

In light of the above, the Board finds that nearly all notice 
required by VCAA and implementing regulations was furnished 
to the veteran.  For those elements of notice that the 
veteran was not specifically informed, the Board has 
demonstrated that any defective predecisional notice error is 
non-prejudicial in terms of the essential fairness of the 
adjudication. and that no useful purpose would be served by 
delaying appellate review to send out additional VCAA notice 
letters.

VA must also make reasonable efforts to assist the appellant 
in obtaining evidence necessary to substantiate the claim for 
the benefit sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.            
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007).

Service medical records are associated with the claims file.  
Post-service treatment records and reports from the Oklahoma 
City VA Medical Center (VAMC) have also been obtained.  The 
veteran has supplied treatment records from Oklahoma Sports 
Science and Orthopaedics (OSSO), Regeneration Physical 
Therapy (RPT) and Dr. Fanning of Oklahoma City, Oklahoma.  
The appellant has not identified any additional medical 
records that should be obtained.  The veteran was afforded 
two VA examinations for the purpose of rating his level of 
disability.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 
3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 
(Fed. Cir. 2002).

In light of the foregoing, the Board is satisfied that all 
relevant facts have been adequately developed to the extent 
possible; no further assistance to the appellant 
in developing the facts pertinent to the issue on appeal is 
required to comply with the duty to assist.  38 U.S.C.A. 
§§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Under 38 U.S.C. § 7104, Board decisions must be based on the 
entire record, with consideration of all the evidence.  In 
Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, 
in pertinent part, that the law requires only that the Board 
address its reasons for rejecting evidence favorable to the 
claimant.  The Federal Circuit has also 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).

Disability evaluations are determined by applying the 
criteria set forth in the VA Schedule for Rating Disabilities 
(Rating Schedule), found in 38 C.F.R. Part 4.  The Board 
attempts to determine the extent to which the veteran's 
service-connected disability adversely affects his ability to 
function under the ordinary conditions of daily life, and the 
assigned rating is based, as far as practicable, upon the 
average impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§  4.1, 4.10 
(2007).  Regulations require that where there is a question 
as to which of two evaluations is to 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.  

This evaluation is not an initial rating.  Therefore, the 
rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that 
the present level of disability is of primary importance is 
applicable.  Further, the Board must evaluate the medical 
evidence of record since the filing of the claim for 
increased rating and consider the appropriateness of a 
"staged rating" (i.e., assignment of different ratings for 
distinct periods of time, based on the facts).  See Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

The veteran is currently service-connected for arthroscopy of 
the right knee with partial right lateral meniscectomy and 
anterior cruciate ligament reconstruction, evaluated as 20 
percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic 
Code 5257 (2007).  The veteran contends that his right knee 
disability is currently characterized by instability and 
limitation of motion due to pain.  As such, he contends that 
he is entitled to a disability rating in excess of 20 percent 
for his service-connected right knee disability. 

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.

VA's General Counsel has held that when a knee disorder is 
rated under 38 C.F.R.  § 4.71a, Diagnostic Code 5257 and a 
veteran also has limitation of knee motion which at least 
meets the criteria for a noncompensable evaluation under 38 
C.F.R.  § 4.71a, Diagnostic Code 5260 or 5261, separate 
evaluations may be assigned for arthritis with limitation of 
motion and for instability.  If a veteran does not meet the 
criteria for a noncompensable rating under either Diagnostic 
Code 5260 or Diagnostic Code 5261, there is no additional 
disability for which a separate rating for arthritis may be 
assigned.  VAOPGCPREC 23-97 (July 1, 1997), published at 62 
Fed. Reg. 63,604 (1997).  However, if a rating is assigned 
under the provisions for other knee impairment (38 C.F.R. § 
4.71a, Diagnostic Code 5257) a separate 10 percent rating may 
be assigned where there is X-ray evidence of arthritis and 
evidence of painful motion.  See VAOPGCPREC 9-98 (August 14, 
1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. 
§ 3.59.

In the present case, the veteran's right knee disability is 
currently rated under Diagnostic Code 5257 for moderate 
lateral instability.  The veteran is not, however, separately 
rated under Diagnostic Codes 5260 or 5261 for limitation of 
motion of the knee.  Under such circumstances, the Board will 
therefore consider (1) whether the veteran is entitled to a 
rating in excess of 20 percent for any instability of the 
right knee, and (2) whether the veteran is entitled to a 
compensable rating for any limitation of motion of the right 
knee for the appropriate period.  With regards to the second 
issue, the Board will consider whether the veteran is 
entitled to a higher rating under Diagnostic Code 5003 or 
Diagnostic Codes 5260 and/or 5261.  The veteran's left knee 
disability, as manifested by degenerative changes, may be 
assigned separate ratings under Diagnostic Codes 5260 and 
5261.  See VAOPGCPREC 9-2004.

The veteran's claim for increase for his right knee 
disability in this case was received on November 30, 2004.  
As such, the rating period for consideration on appeal stems 
from November 30, 2003.  38 C.F.R. § 3.400 (o)(2) (2007).

I. Increased Evaluation Based on Instability of the Left Knee

As noted above, the veteran's right knee disability is 
currently rated as 20 percent disabling pursuant to 38 C.F.R. 
§ 4.71a, Diagnostic Code 5257 (2007).  Diagnostic Code 5257 
provides for a 20 percent evaluation is where there is 
moderate recurrent subluxation or lateral instability.  A 30 
percent evaluation is assigned where there is severe 
recurrent subluxation or lateral instability.  38 C.F.R. § 
4.71a, Diagnostic Code 5257 (2007).

The Board finds an evaluation in excess of 20 percent under 
Diagnostic Code 5257 is not warranted for the right knee, as 
the veteran's complaints of severe instability of the right 
knee are not supported by the objective clinical findings.  
The veteran demonstrated a normal Drawer and McMurray's test 
at his February 2005 VA examination.  An August 2007 VA 
examination report indicates slight laxity with anterior 
drawer.  A Lachman's test performed during the August 2007 VA 
examination indicated laxity of the anterior cruciate 
ligament.  At this examination, the veteran reported two 
instances of his knee giving way since discharge from active 
service in 1997.  The examiner classified the veteran's right 
knee instability as mild.

The Board places significantly more weight on the objective 
clinical findings reported on examination than the veteran's 
own subjective statements in support of his claim.  See Smith 
v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the 
credibility of evidence is a function for the Board).  Since 
the clinical evidence shows no more than moderate instability 
of the right knee, the Board finds that the preponderance of 
the evidence is against an evaluation in excess of 20 percent 
under Diagnostic Code 5257 due to recurrent subluxation or 
lateral instability.  

II Entitlement to a Separate Evaluation Based on Limitation 
of Motion

The veteran's right knee disability is not currently 
separately rated for limitation of motion.  Under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5003, arthritis established by X-ray 
findings will be rated on the basis of limitation of motion 
under the appropriate diagnostic code(s) for the specific 
joint involved.  The normal range of knee motion is 140 
degrees of flexion and zero degrees of extension.  38 C.F.R. 
§ 4.71, Plate II (2007).

Limitation of motion of the knee is contemplated in 38 C.F.R. 
§ 4.71a, Diagnostic Codes 5260 and 5261 (2007).  Diagnostic 
Code 5260 provides for a zero percent evaluation where 
flexion of the leg is only limited to 60 degrees.  For a 10 
percent evaluation, flexion must be limited to 45 degrees.  A 
20 percent evaluation is warranted where flexion is limited 
to 30 degrees.  A 30 percent evaluation may be assigned where 
flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, 
Diagnostic Code 5260.

Diagnostic Code 5261 provides for a zero percent evaluation 
where extension of the leg is limited to five degrees.  A 10 
percent evaluation requires extension limited to 10 degrees.  
A 20 percent evaluation is warranted where extension is 
limited to 15 degrees.  A 30 percent evaluation may be 
assigned where the evidence shows extension limited to 20 
degrees.  For a 40 percent evaluation, extension must be 
limited to 30 degrees.  And finally, where extension is 
limited to 45 degrees, a 50 percent evaluation may be 
assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Separate ratings under Diagnostic Code 5260 (limitation of 
flexion of the leg) and Diagnostic Code 5261 (limitation of 
extension of the leg) may be assigned for disability of the 
same joint.  VAOPGCPREC 9-04 (September 17, 2004), published 
at 69 Fed. Reg. 59,990 (2004).  Specifically, where a veteran 
has both a limitation of flexion and a limitation of 
extension of the same leg, the limitations must be rated 
separately to adequately compensate for functional loss 
associated with injury to the leg.  Id.

April 2006 VA treatment records indicate the veteran has been 
diagnosed with mild osteoarthritis, established by x-ray 
evidence and the Board concludes that the record supports a 
finding that the arthritis is as likely as not related to the 
veteran's service connected right knee disability.  VA 
treatment records also provide objective assessment of 
painful motion.  As such, the Board finds that the veteran is 
entitled to a separate evaluation under Diagnostic Code 5003 
because there is X-ray evidence of degenerative arthritis and 
objective evidence of painful motion.  However, as was 
previously discussed, in considering the veteran's limitation 
of motion of his right knee disability, the Board must 
consider whether he is entitled to a higher disability rating 
under Diagnostic Code 5003 or Diagnostic Codes 5260 and/or 
5261.  As noted above, the Board will also consider whether a 
higher rating is in order given consideration of the DeLuca 
factors.

After careful review of the record, the Board finds that the 
competent medical evidence of record does not support a 
separate evaluation in excess of 10 percent.  In this regard, 
a February 2005 VA examination report indicates that the 
veteran's right knee had full flexion to 140 degrees and full 
extension to 0 degrees, with no limitation due to main, 
fatigue, weakness, lack of endurance or incoordination after 
repetitive use.  In addition, an April 2006 VA treatment 
record indicates the veteran has full range of motion of the 
right knee and "no trouble with the functioning of the 
knee."  Finally, an August 2007 VA examination report 
indicates full flexion to 140 degrees and full extension to 0 
degrees without pain.

The Board notes that neither of the veteran's examinations 
nor any other evidence of record reveals flexion limited to 
60 degrees or extension limited to 5 degrees.  Thus, the 
Board finds that the veteran is not entitled to a separate 
compensable rating under the schedular criteria of Diagnostic 
Codes 5260 or 5261.  The evidence of record does, however, 
demonstrate that there is x-ray evidence of arthritis in the 
right knee and objective evidence of pain.  In light of the 
evidence above, the Board finds that the veteran is entitled 
to a separate evaluation of 10 percent, but not greater, 
under Diagnostic Code 5003.

III. Additional Considerations

The Board has considered the applicability of additional 
diagnostic codes potentially applicable to the veteran's 
service-connected left knee disability.  However, no higher 
or separate evaluation is warranted under any of these 
diagnostic codes.  In this regard, the Board observes that 
Diagnostic Codes 5258 and 5259 do not apply to the veteran's 
current disability because there is no evidence of semilunar 
dislocated cartilage or removal of the semilunar cartilage.  
In addition, as the evidence of record fails to demonstrate 
ankylosis or impairment of the tibia or fibula, the veteran 
is not entitled to a separate or higher rating under 
Diagnostic Codes 5256 or 5262.

Finally, the Board has considered the potential application 
of various provisions of Title 38 of the Code of Federal 
Regulations, but the record does not present such "an 
exceptional or unusual disability picture as to render 
impractical the application of the regular rating schedule 
standards."  38 C.F.R. § 3.321(b)(1) (2007).  In this 
regard, the Board finds that there has been no showing by the 
veteran that his service-connected right knee disability has 
resulted in marked interference with employment or 
necessitated frequent periods of hospitalization.  The Board 
observes that the veteran is employed as a systems 
administrator.  Under these circumstances, the Board finds 
that the veteran has not demonstrated marked interference 
with employment so as to render impractical the application 
of the regular rating schedule standards.  In the absence of 
such factors, the Board finds that criteria for submission 
for assignment of an extraschedular rating pursuant to 
38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell, 9 Vet. 
App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 
(1996).

The Board acknowledges the veteran's statements that his 
right knee disability is worse than the assigned 20 percent 
rating for lateral instability.  However, in determining the 
actual degree of disability, an objective examination is more 
probative of the degree of the veteran's impairment.  
Furthermore, the opinions and observations of the veteran 
alone cannot meet the burden imposed by the rating criteria 
under 38 C.F.R. § 4.71a with respect to determining the 
severity of his service-connected right knee disability.  See 
Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 
3.159(a)(1) and (2) (2007).  As a preponderance of the 
evidence is against the assignment of an evaluation in excess 
of 20 percent for lateral instability of the right knee, the 
benefit-of-the-doubt rule does not apply, and this portion of 
the veteran's claim must be denied.  38 U.S.C.A. § 5107(b) 
(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  
However, as noted above, the evidence of record includes a 
diagnosis of degenerative arthritis, established by x-ray 
evidence, as well as objective findings of painful motion.  
As such, the Board finds that a separate evaluation of 10 
percent is warranted pursuant to 38 C.F.R. § 4.71a, 
Diagnostic Code 5003.




ORDER

An increased evaluation in excess of 20 percent for lateral 
instability due to arthroscopy of the right knee with partial 
right lateral meniscectomy and anterior cruciate ligament 
reconstruction, is denied.

A separate evaluation of 10 percent, but not greater, for 
arthritis of the right knee is granted, subject to laws and 
regulations governing the payment of monetary benefits.




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs