Citation Nr: 1327175 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-07 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable evaluation for residuals, right hand fracture. 2. Entitlement to an initial evaluation higher than 10 percent for patellofemoral pain syndrome, right knee. 3. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran is appealing from the initial assigned disability ratings (rated as 0 percent) following grants of service connection for right hand and right knee disorders. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). Also contested is entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. Through a June 2012 rating decision, the RO granted a 10 percent initial evaluation for the right knee disorder, effective January 12, 2008. Regardless, the claim for a higher evaluation remains on appeal, absent an express withdrawal of the claim. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The RO's decision also granted a claim then on appeal for service connection for tinnitus, from which the Veteran has not appealed the initial assigned disability rating or effective date, the result being that the claim is effectively resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The Veteran's residuals of right hand fracture are to the fourth and fifth digits of the right hand, for which under the rating schedule any limitation of motion and/or joint ankylosis is noncompensable. 2. The Veteran has range of motion in the right knee from 0 to 110 degrees, with no further diminution attributable to functional loss. There is no subluxation or instability of the knee. 3. The Veteran is in receipt of 10 percent service-connected disability compensation for his right knee disorder, as well as for tinnitus, pursuant to a June 2012 RO rating decision during pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria are not met for an initial compensable evaluation for residuals, right hand fracture. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5227, 5230 (2013). 2. The criteria are not met for an initial evaluation higher than 10 percent for patellofemoral pain syndrome, right knee. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5003, 5024, 5257 5260, 5261 (2013). 3. The criteria are not met for a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities. 38 U.S.C.A. §§ 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.324 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the development of a claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2012). In regard to the claims on appeal for higher initial evaluation for service-connected right hand and right knee disabilities, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the underlying claims for service connection for a right hand disorder and right knee disorder have been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. Regardless, the Veteran was provided adequate VCAA letters in December 2007 and April 2009. The RO has also complied with the duty to assist the Veteran through arranging for a VA Compensation and Pension examination in November 2010. See 38 C.F.R. § 4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). There is no basis upon which to obtain any outstanding VA or private medical records. In furtherance of these claims, the Veteran also provided personal statements. He has not requested a hearing in connection with this matter. There is no indication of any further available evidence or information which has not already been obtained. In sum, the record reflects that the facts pertinent to the claims being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. As to the claim for entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities, this claim is denied as a matter of law; therefore, there is no further duty to notify and assist. Background and Analysis Increased Rating for Right Hand Disorder Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of his disability. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. As here, in the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, at 125-26. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The condition of residuals, right hand fracture is rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5230, for an unlisted orthopedic condition, evaluated under the provisions for limitation of motion of the ring or little finger. Under Diagnostic Code 5230, any limitation of motion of the ring or little finger warrants assignment of a noncompensable (0 percent) rating. Also potentially applicable is Diagnostic Code 5227, for ankylosis of the ring or little finger, under which a noncompensable rating is assigned, whether there is unfavorable or favorable ankylosis. A note to the rating criteria provides for consideration also of whether evaluation as amputation is warranted, and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. The Veteran underwent VA Compensation and Pension examination in October 2010. He then reported that he underwent a pinning for a fracture of the right hand in service when it was crushed by a forklift at a warehouse in Camp Lejeune. He was taken to the hospital where pins were put in for the fractures, and went on convalescent leave for 10 days and then returned to light duty. After a couple of months the pins came out, and he eventually returned to full duty. He reported still using ibuprofen over-the-counter on an as needed basis. The Veteran was a police officer and was able to function at work. He did complain of flare-ups of pain, but was independent in activities of daily living. About five times a week he would have throbbing pain level 6/10 and he identified the dorsal aspect of the fifth metacarpal. The pain lasted 1-2 hours. It could be brought on by cold weather, prolonged writing or keyboarding or attempting to grip heavy exercise weights. He felt when he got the pain the hand tightened up. He would use ibuprofen, apply heat or ice and rest to alleviate the pain. On physical examination, there was no ankylosis. The affected region consisted of the ring finger and little finger of the right hand. On inspection there was a bony prominence over the fifth metacarpal, and it was mildly tender to palpation. Range of motion for the fifth metacarpophalangeal joint was to 90 degrees with pain at the end of range. The fourth metacarpophalangeal joint was also to 90 degrees with complaint of pain. The fourth and fifth digit proximal interphalangeal joints were to 100 degrees without pain and the distal interphalangeal joint was to 70 degrees without pain. All other digits had full active and passive range of motion. On evaluation of the hand as a unit, there were no gaps between the tip of the thumb and the fingers; no gaps between the tips of the fingers and the proximal transverse crease of the palm; and no gaps between the thumb pad and the fingers with the thumb attempting to oppose. The fifth finger had a slight radial deviation and tended to touch under the fourth digit when the Veteran made a full grasp. Hand strength with a full grasp was 5/5 and pincer and three-jaw chuck strength was also 5/5. The majority of strength for pushing, pulling and twisting came from the first three digits of the hand and appeared to be within normal limits. The Veteran appeared to have normal dexterity for activities of daily living such as twisting, probing, writing, etc. This slight angulation deformity in the fifth digit tucked under the fourth digit could affect his ability to grasp an item such as a weight in the gym. Active range of motion was comparable to these findings. On three repetitions no functional loss was noted. The diagnosis was residuals of fracture of right fourth and fifth metacarpals. Having reviewed this case with due application of rating criteria, the Board must deny the claim for increased evaluation for residuals of a right hand fracture. The above VA examination has confirmed that the affected area of service-connected disability is limited to that of the fourth and fifth digits of the right hand (this is also consistent with what service treatment records (STRs) show regarding the original injury). Under the VA rating schedule, a noncompensable evaluation is all that is assignable for limitation of motion of the little and ring fingers, as well as for ankylosis (total absence of mobility) of those fingers. Based on application of the rating schedule, there is simply no basis for a compensable evaluation. It is further observed still that the symptomatology that is shown on examination is very limited -- inasmuch as the Veteran retained at or near full range of motion and strength in the right hand digits, and outwardly had only a slight angulation deformity in the fifth digit. Nor for that matter is there any indication of noncompensable but x-ray confirmed degenerative arthritis in the affected region in multiple minor joint groups, such that it would otherwise substantiate assignment of a minimum 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for degenerative arthritis. See also 38 C.F.R. § 4.59. The Board has considered the Veteran's complaints of pain. Although the evidence does show that the Veteran experiences painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Therefore, a compensable evaluation under the VA rating schedule for residuals of a right hand fracture is not warranted. Apart from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there is no basis to find that the Veteran's service-connected right hand condition presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. See also 38 C.F.R. §§ 4.40, 4.45. The rating criteria premised upon limitation of motion fairly encompasses the extent of symptomatology shown. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for an initial compensable rating for residuals of a right hand fracture. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and under these circumstances, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating for Right Knee Disorder The RO has evaluated the service-connected right knee patellofemoral pain syndrome at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5024, pertaining to tenosynovitis, and which in turn is to be rated on the provisions regarding degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion of the specific joint or joints involved. When however, limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion but x-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Id. Diagnostic Code 5261 provides that limitation of motion of the knee will be assigned a noncompensable rating when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, other knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 VA's Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). VAOPGCPREC 23-97 held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). The Veteran underwent a VA examination of the knees in October 2010. He was not then undergoing any form of treatment. He described right knee pain daily, around the middle and inferior knee cap, at level 6 to 8, out of 10, and described as sharp and throbbing, and associated with weakness, giving way once in a while, stiffness, and lack of endurance for running. There was also clicking. He got an intermittent feeling of swelling and heat, but no redness, tenderness or drainage. He takes Ibuprofen over-the-counter and it helped a little and there were no side effects. Symptoms were relatively steady day-to-day without specific flare-up. He had a knee brace that was a sleeve type with patella cut out that he would use if he did yard work or any sports. There were no hospitalizations or surgeries related to the knee, and no constitutional symptoms of inflammatory arthritis. He was independent of activities of daily living. He was a police officer and did have knee pain while on the job, but was able to perform his usual duties. He could stand and walk as needed but did have some pain after prolonged standing and walking. He stated he only participated in sports about once a week on a recreational basis, usually softball. He was no longer running for exercise. On physical examination he walked with a non-antalgic gait. He could walk on toes and heels but he did complain of right knee pain while he did it. There were no abnormal shoe wear patterns. The affected right knee had a positive Clarke's test, moderately positive patella grind and patella ballottement test. There was also tenderness to palpation of the medial patella facet and the distal tibial tendon. There was significant crepitus on passive range of motion and active range of motion. Range of motion was 0 to 110 degrees with pain at the end of range and this was consistent on three repetitions. On three repetitions, no additional functional loss was noted. Stability for the right knee was maintained on varus and valgus stress at neutral and 30 degrees of flexion. Stability for the right knee was maintained on anterior posterior stress at 30 degrees and 90 degrees. McMurray's testing was negative. Motor strength was 4/5 for the right knee. There was no muscle atrophy, or obvious effusion. There were no contusions or abrasions. An x-ray of the knee from 2007 was read as normal. The diagnosis was right knee patellofemoral syndrome with patella tendinitis. In light of the above, a disability rating beyond 10 percent for right knee patellofemoral syndrome is not warranted. Pursuant to applicable rating criteria, to warrant the next higher evaluation of 20 percent, under Diagnostic Code 5260, this rating requires flexion limited to 30 degrees, and under Diagnostic Code 5261, knee extension must be limited to 15 degrees. In the alternative, the Veteran could warrant two separate 10 percent evaluations for compensable limited motion in the planes of both flexion and extension. See VAOPGCPREC 9-04. However, the objective testing process for range of motion demonstrates retained mobility from 0 to 110 degrees. These findings do not meet even the criteria for the assignment of 0 percent ratings under DC 5260 and DC 5261. Accordingly, an increased rating is not warranted under these codes. There was no further limitation upon repetitive use, or other quantifiable functional loss. The 2010 VA examiner noted that on three repetitions, no additional functional loss was noted. Although the evidence does show that the Veteran experiences painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Nor for that matter has the Veteran's right knee disorder been manifested by any recurrent subluxation and/or lateral instability, such as to substantiate assignment of a separate, compensable rating under provisions of Diagnostic Code 5257. See VAOPGCPREC 23-97. On VA examination in October 2010, stability for the right knee was maintained on varus and valgus stress at neutral and 30 degrees of flexion. Stability for the right knee was also maintained on anterior posterior stress at 30 degrees and 90 degrees. McMurray's testing was negative. Consequently, a separate and/or higher evaluation than 10 percent under DC 5257 is not warranted. The Board has likewise considered whether an extraschedular evaluation may be warranted for the instant service-connected disability under consideration, again pursuant to the criteria elucidated in Thun v. Peake, 22 Vet. App. 211 (2008). Here, however, there is no preliminary basis to find that the Veteran's service-connected right knee condition presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. The rating criteria premised upon limitation of motion fairly encompasses the extent of symptomatology shown. The Veteran currently has noncompensable limitation of motion under DC 5260 and DC 5261. His current 10 percent rating is assigned based upon pain, crepitus, patella grind, etc. See 38 C.F.R. §§ 4.40, 4.45. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for a higher initial rating for right knee disability, including with regard to the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim. The preponderance of the evidence is against the claim, and under these circumstances, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Entitlement to 10 Percent Evaluation for Multiple Noncompensable Disabilities Under provisions of 38 C.F.R. § 3.324, where a claimant experiences two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the VA rating schedule, VA may award a 10 percent rating, though not in combination with any other rating. In this case, during pendency of the appeal, the RO granted an initial 10 percent evaluation for the Veteran's service-connected right knee disorder, therefore obviating the need for any further consideration of compensation directly under section 3.324. Moreover, the RO has also granted service connection and an initial 10 percent evaluation for tinnitus. It follows that the claim for a 10 percent evaluation for multiple noncompensable disabilities under 38 C.F.R. § 3.324 is rendered a moot issue, and must be denied as a matter of law. ORDER An initial compensable evaluation for residuals, right hand fracture is denied. An initial evaluation higher than 10 percent for patellofemoral pain syndrome, right knee, is denied. A 10 percent evaluation based on multiple, noncompensable, service-connected disabilities is denied. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs