Citation Nr: 1331517	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  94-09 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an increased rating for chondromalacia patella with degenerative changes of the left knee; rated as noncompensable prior to February 26, 1998, and 10 percent disabling since February 26, 1998. 

2.  Entitlement to an increased rating for chondromalacia patella with degenerative changes of the right knee, currently rated as 10 percent disabling.

3.  Entitlement to a higher initial rating for residuals of chondromalacia patella, left knee, limitation of extension, rated 30 percent disabling from September 28, 2010.

4.  Entitlement to a higher initial rating for residuals of chondromalacia patella, right knee, limitation of extension, rated 20 percent disabling from September 28, 2010.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran, who is the appellant, had active military service from March 1971 to August 1984. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that increased the Veteran's evaluation for a right knee disability to 10 percent disabling effective May 18, 1993, and continued his noncompensable rating for a left knee disability. 

The Veteran appeared at the RO and testified before the undersigned Veterans Law Judge in April 1994.  A transcript of that hearing is of record.

This case was previously before the Board in March 1996 and December 1997 and was remanded to the RO for further development.  Then, in a March 1998 decision, the Board denied both of the Veteran's increased rating (IR) claims. 

The Veteran thereafter filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court).  In September 1998, counsel for the VA Secretary filed an unopposed Motion for Remand and to Stay Further Proceeding, arguing that the Board's March 1998 decision should be vacated and remanded.  The Court subsequently granted the motion in an Order dated October 1998.

In June 1999, the Board remanded the Veteran's IR claims to the RO for further development in accordance with the Court's October 1998 Order.  

In a December 1999 Supplemental Statement of the Case (SSOC), the RO recharacterized the Veteran's knee disabilities as left chondromalacia patella and right chondromalacia patella, and increased his disability rating to 10 percent effective October 4, 1999.  In January 2000, the Veteran filed a notice of disagreement (NOD) arguing that he was entitled to an earlier effective date (EED) for the award of the 10 percent rating for left chondromalacia patella.

The Veteran then testified before RO personnel during a hearing at the RO in January 2000.  A transcript of that hearing is of record.  

In a February 2000 SSOC, the RO granted the Veteran's claim for an EED of February 26, 1998, for the award of 10 a percent rating for his left chondromalacia patella.  The Veteran, however, filed a substantive appeal for the EED claim (via a VA Form 9) in March 2000.

The Board remanded the IR claims and the EED claim to the RO for further development in May 2000.

In July 2001, the Veteran appeared at the RO and testified before a member of the Board.  A transcript of that hearing is of record.

The Board subsequently denied the Veteran's IR claims and his EED claim in February 2002.  The Veteran filed a timely appeal to the Court.  In October 2002, counsel for the VA Secretary filed an unopposed Motion for Remand and to Stay Further Proceeding with the Court, arguing that the Board's February 2002 decision should be vacated and remanded.  The Court granted the motion in a November 2002 Order.

In September 2003, the Board remanded the Veteran's claims to the RO for action consistent with the November 2002 Court Order.

In August 2005, the Board again denied the Veteran's IR claims and his EED claim.  The Veteran thereafter appealed the matter to the Court.  In April 2007, the parties filed a Joint Motion for Remand with the Court, arguing that the Board's August 2005 decision should be vacated and remanded.  The Court granted the motion in an April 2007 Order. 

In July 2007, the Board denied the Veteran's IR claims and his EED claim for the fourth time.  The Veteran filed a timely appeal to the Court.  In February 2009, both parties filed a Joint Motion for Remand with the Court arguing that the Board's July 2007 decision should be vacated and remanded.  In February 2009, the Court granted the motion and remanded the claims for compliance with the instructions set forth in the motion.

In May 2009, the Board remanded the Veteran's IR claims to the RO for further development in accordance with the Court's February 2009 Order.  In part, the Board remanded the case for further examination in the light of evidence of increased symptoms since the Veteran's then most recent VA examination in April 2004.  In September 2010, the Board again remanded the claims, finding the results of VA examination in August 2009 to be inadequate, and that further development was needed with respect to outstanding private records and records pertaining to the Veteran's disability retirement claims as a U.S. Postal Service employee with the U.S. Office of Personnel Management (OPM) and the Social Security Administration (SSA).  

A January 2012 rating decision assigned separate 10 percent ratings for limitation of extension of the left and right knees, effective from September 28, 2010.  

In July 2011 the Board again remanded the claims, finding that further development was needed with respect to outstanding records pertaining to the Veteran's SSA disability retirement claims.  This was accomplished, and the claims were readjudicated in a June 2012 supplemental statement of the case (SSOC).  For this reason, the Board concludes that it may proceed with a decision at this time.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

In an August 2012 decision the Board denied entitlement to a compensable rating for the left knee chondromalacia patella before February 26, 1998 and in excess of 10 percent from February 26, 1998.  The Board denied entitlement to a disability rating in excess of 10 percent for the right knee chondromalacia patella.  The Board granted a 30 percent initial rating to the left knee disability based on limitation of extension, from September 28, 2010 and assigned a 20 percent initial rating to the right knee chondromalacia patella for limitation of extension from September 28, 2010.   

The Veteran filed a timely appeal to the Court.  In April 2013, both parties filed a Joint Motion for Remand with the Court arguing that the portion of the Board's August 2012 decision that denied higher disability ratings to the left and right knee disabilities should be vacated should be vacated and remanded.  In April 2013, the Court granted the motion.  The Court vacated the portion of the Board decision that denied entitlement to a compensable rating for the left knee chondromalacia patella before February 26, 1998 and in excess of 10 percent from February 26, 1998; denied entitlement to a disability rating in excess of 10 percent for the right knee chondromalacia patella; a denied an initial rating in excess of 30 percent for the left knee disability based on limitation of extension, from September 28, 2010; and denied an initial rating in excess of 20 percent for the right knee disability based on limitation of extension from September 28, 2010.  The Court did not disturb the portion of the Board's decision that granted a 30 percent initial rating to the left knee disability based on limitation of extension, from September 28, 2010 and assigned a 20 percent initial rating to the right knee disability based upon limitation of extension from September 28, 2010.  The Court remanded the claims for compliance with the instructions set forth in the motion.

The Board further determines that, notwithstanding the previous characterization of the issue by the RO, the representative, and the Veteran (characterizing the issue as earlier effective date for an increased rating), the left knee increased rating issue currently on appeal is entitlement to a higher (staged) disability rating for service-connected chondromalacia patella with degenerative changes of the left knee - in excess of 0 percent prior to February 26, 1998, and in excess of 10 percent from February 26, 1998.  Because the date that entitlement arose question is part of the increased rating issue on appeal, there remains no separate issue of effective date.  As part of the increased rating claim, the Board will consider the entire increased rating period to determine if entitlement to a higher rating occurred at any time during the rating period. 

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.  The Virtual VA file contains VA treatment records that were not part of the file at the time the most recent supplemental statement of the case was issued.  However, the VA treatment records are not pertinent to the issue on appeal and does not address the current severity of the service-connected right and left knee disabilities.  The Board finds that the solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required.  38 C.F.R. § 20.1304(c).   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  For the increased rating period prior to February 26, 1998, the Veteran's chondromalacia patella of the left knee is manifested by pain, noncompensable limitation of flexion with flexion ranging from 104 degrees to 140 degrees, weakness, and crepitus without objective evidence of arthritis substantiated by x-ray, ankylosis, flexion more nearly approximating 30 degrees or less, extension limited to 10 degrees or more, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum.

2.  For the increased rating period from February 26, 1998, the Veteran's chondromalacia patella with degenerative changes of the left knee is manifested by x-ray evidence of arthritis, pain, limitation of flexion with flexion ranging from 40 degrees to 130 degrees, weakness, tenderness, swelling, and decreased endurance without objective evidence of limitation of flexion more nearly approximating 30 degrees or less, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum.

3.  For the increased rating period prior to September 28, 2010, the Veteran's chondromalacia patella of the left knee is manifested by full extension.  

4.  For the initial rating period from September 28, 2010, the Veteran's residuals of chondromalacia patella of the left knee is manifested by a limitation of extension with extension limited to 10 to 20 degrees, without objective evidence of limitation of extension more nearly approximating a limitation of extension to 30 degrees or more.  

5.  For the entire appeal period, the Veteran did not have instability or subluxation of the left knee.  



6.  For the entire increased rating period, the Veteran's chondromalacia patella with degenerative changes of the right knee is manifested by x-ray evidence of arthritis, pain, limitation of flexion with flexion ranging from 35 degrees to 130 degrees, weakness, tenderness, swelling, crepitus, and decreased endurance without objective evidence of limitation of flexion more nearly approximating 30 degrees or less, recurrent subluxation or lateral instability, impairment of the tibia and fibula, or genu recurvatum.

7.  For the increased rating period prior to September 28, 2010, the Veteran's chondromalacia patella of the right knee is manifested by full extension.  

8.  For the initial rating period from September 28, 2010, the Veteran's residuals of chondromalacia patella of the right knee is manifested by a limitation of extension with extension limited to 10 to 15 degrees, without objective evidence of limitation of extension more nearly approximating a limitation of extension to 20 degrees or more.  

9.  For the entire appeal period, the Veteran did not have instability or subluxation of the right knee.  


CONCLUSIONS OF LAW

1.  For the increased rating period prior to February 26, 1998, the criteria for a 10 percent rating for chondromalacia patella with degenerative changes of the left knee are met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2013).

2.  For the entire increased rating period, the criteria for a disability evaluation in excess of 10 percent for chondromalacia patella with degenerative changes of the left knee are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5256 to 5263 (2013).

3.  Prior to September 28, 2010, a separate compensable rating for the left knee chondromalacia patella based upon limitation of extension is not warranted.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5261 (2013).

4.  For the entire appeal period, a separate compensable rating for the left knee chondromalacia patella based upon subluxation or instability is not warranted.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2013).

5.  From September 28, 2010, the criteria for a rating in excess of 30 percent for residuals of chondromalacia patella, left knee, based upon limitation of extension, have not been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5261 (2013).

6.  For the entire increased rating period, the criteria for a rating in excess of 10 percent for chondromalacia patella with degenerative changes of the right knee are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5256 to 5263 (2013).

7.  Prior to September 28, 2010, a separate compensable rating for the right knee chondromalacia patella based upon limitation of extension is not warranted.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5261 (2013).

8.  For the entire appeal period, a separate compensable rating for the right knee chondromalacia patella based upon subluxation or instability is not warranted.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2013).



9.  From September 28, 2010, the criteria for a rating in excess of 20 percent for residuals of chondromalacia patella, right knee, based upon limitation of extension, have not been met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5261 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues on appeal.  In this appeal, in a February 2004 post-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claims for an increased rating and to substantiate a claim for an earlier effective date for the grant of an increased rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  The letter also requested that the Veteran submit any evidence in his possession that pertained to the claims.  Further, the October 2004 supplemental SOC (SSOC) reflects readjudication of the claims after issuance of this letter.  Hence, the Veteran is not shown to be prejudiced by the timing of VCAA-compliant notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect).

The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A.  VA has obtained VA and private treatment records and other records identified by the Veteran, including SSA and OPM records.  

The Veteran has been afforded adequate examinations on the issues of increased ratings for service-connected left and right knee disabilities.  VA provided the Veteran with examinations in August 1993, June 2000, April 2004, August 2009, September 2010, and March 2011.  Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted.  Conclusions reached and diagnoses given were consistent with the examination report.  For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues of increased ratings for service-connected left and right knee disabilities.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Factual Background

The Veteran has contended that his left and right knee disabilities have worsened since his original claim for disability benefits.  During the course of outpatient orthopedic treatment in mid-March 1984, the Veteran gave a "long history" of knee pain on the right, though, currently, his left knee was somewhat worse than the right knee.  According to the Veteran, his knee problems were worse with running and deep knee bends.  Physical examination revealed no evidence of effusion.  There was a full range of motion bilaterally, though with pain on patellar compression on the left.  Tone was described as good, and there was no evidence of joint instability.  At the time of evaluation, radiographic studies of the Veteran's knees were normal.

An X-ray of the bilateral knees conducted during a June 1986 VA examination revealed negative bilateral knees.

During the course of a private orthopedic examination in January 1992, it was noted that the Veteran was able to walk about the room on his tiptoes and heels, and could both execute and rise from full deep knee bends.  No deformities were present, and the Veteran's knee joints displayed a full range of motion.

During the course of VA outpatient treatment in early July 1992, the Veteran gave a history of chronic right knee pain which had been getting worse.  Reportedly, the Veteran had been experiencing pain in his right knee "off and on" for a period of five years.  The clinical assessment was knee pain.

Private radiographic studies of the Veteran's right knee conducted in mid-May 1993 showed evidence of very mild spurring of the femoral condyle's inner aspect, though with no evidence of fracture, dislocation, or significant bony abnormality.  The clinical impression was "very mild degenerative changes."

On May 18, 1993, the Veteran submitted the current claim for increased evaluations for his service-connected right and left knee disabilities.

Private treatment records dated in May and June 1993 show treatment at that time for various knee-related problems.  In mid-May 1993, the Veteran was seen in the Emergency Department of a private medical facility for complaints of right knee pain.  At the time of evaluation, the Veteran gave a history of "worn cartilage" in both knees.  The Veteran was observed to ambulate with a limp, but there was no evidence of any knee swelling.  Physical examination of the right knee revealed no erythema, swelling or effusion.  The knee was nontender to palpation.  There was crepitus and range of motion was limited secondary to pain.

At the time of a private orthopedic examination in late May 1993 by T.O., M.D, the Veteran complained of knee pain, in particular, in his right knee, which had been exacerbated by his job, which required deep knee bending and prolonged periods of standing.  Physical examination revealed no evidence of any effusion.  Range of motion measurements showed full extension to 130 degrees of flexion bilaterally.  The cruciate and collateral ligaments were stable bilaterally, and there was normal strength in all lower extremity muscle groups.  There was some crepitus with range of motion, in particular, in the joint line of the right knee medially and laterally, which caused the Veteran some discomfort.  No locking or popping was present, and McMurray's test was negative bilaterally.  The diagnosis was early degenerative arthritis of the right knee, based on X-rays of the right knee.

A June 1993 private Certificate of Fitness record shows that the Veteran required limited duty of no deep knee bands and no standing over 30 minutes due to right knee strain and early degenerative joint disease of the right knee.

In August 1993, a VA orthopedic examination was accomplished.  At the time of examination, the Veteran gave a history of discomfort "on and off" in his right knee.  Reportedly, the Veteran had been able to "get by" by wearing a brace, and using anti-inflammatory medication.  However, in May 1993, he found himself in the emergency room of a private medical facility as a result of "increased right knee pain."  When questioned regarding his left knee, the Veteran commented that he "didn't have much problem" with that knee.  He stated that while there was a "grinding feeling" and discomfort in the right knee, this was not true of the left knee.  At the time of examination, neither knee showed any evidence of instability.  McMurray's test was negative bilaterally, and flexion of the left knee was between 110 and 115 degrees.  Radiographic studies revealed no evidence of any fracture or dislocation of either knee, and both of the Veteran's knee joints were well maintained.  The radiographic impression was no evidence of fracture or other bony abnormality.

In a rating decision of August 1993, the previous (noncompensable) rating for the Veteran's right knee disability was increased to 10 percent, effective May 18, 1993, the date of receipt of his claim for increase.  A noncompensable rating was continued for the Veteran's left knee disability.

In a September 1993 letter, a private orthopedic surgeon, R.P., M.D., commented that the Veteran suffered from pain in both knees, the right knee being somewhat worse than the left.  In the opinion of the private physician, the Veteran exhibited some mild crepitation, as well as what appeared to be "synovial plica-type symptoms" in the parapatellar region.

In an undated letter received by VA in September 1993, the private physician, P.S., M.D., stated that he had reviewed the Veteran's medical records, and that, in his opinion, the Veteran did exhibit "significant degenerative arthritis of his knees."  The physician further noted that the Veteran's problems might have been aggravated by a June 1992 injury to his right knee, and that, due to such problems, there was a need for the Veteran to bid on a permanent change of jobs to a position not involving excessive walking, climbing, or prolonged standing.

In correspondence of mid-October 1993, a private orthopedic surgeon stated that the Veteran suffered from "contingent" knee pain due to weakness and patellofemoral dysfunction.  The physician recommended that the Veteran continue in an active exercise program, involving occasional, but no repetitive, deep knee bends or squatting activities.

In correspondence of early December 1993, that same private orthopedic surgeon commented that, due to the Veteran's problems with patellofemoral dysfunction and chondromalacia, and his history of prior heel cord injury, it was "unlikely" that he could return to jobs requiring deep knee bends or lifting from a squatting position.

In correspondence of January 1994, the Veteran's private orthopedic surgeon stated that the Veteran had been under his care for multiple orthopedic problems, among them, patellofemoral dysfunction and chondromalacia.  Due to these problems, the Veteran had been placed on "permanent restriction" from positions requiring deep knee bends or lifting from a squatting position.

In January 1994, an additional VA orthopedic examination was accomplished.  At the time of examination, it was noted that the Veteran limped on his right knee, and utilized a walking cane.  The Veteran reported that after August 1993, the Veteran, who was a mechanic, was put on limitation of no deep bending or lifting in a squatting position, and because the Veteran could not do his job with these limitations, he had not returned to work.  Physical examination revealed that the Veteran had a mild knee valgus on the right of approximately 5 degrees.  There was no swelling of either knee, and not much crepitus on passive extension and flexion.  However, on palpation of the right knee, there was some evidence of tenderness in the area of the patellar ligament.  At the time of evaluation, there was no evidence of any anteroposterior or lateral instability, though on McMurray's test, there was increased crepitus and pain in the right knee.  No such crepitus or pain was present on the left.  Range of motion measurements showed flexion to 125 degrees on the right, and to 128 degrees on the left.  Magnetic Resonance Imaging (MRI) conducted in conjunction with the Veteran's orthopedic examination was considered "nondiagnostic" due to technical limitations.  The pertinent diagnoses were negative left knee, and chondromalacia of the right knee.

During the course of VA outpatient treatment in late March 1994, the Veteran complained of bilateral knee pain, somewhat worse on the right than the left, with aching following increased activity, and on awakening in the morning.  On physical examination, there were negative guarding and apprehension signs bilaterally.  Lateral tracking of the patella resulted in pain, somewhat worse on the right than the left, though with no evidence of any laxity.  Radiographic studies of the Veteran's knees were described as within normal limits.  The clinical assessment was chronic bilateral patellofemoral pain.

At the time of a hearing before a traveling Veterans Law Judge in April 1994, the Veteran offered testimony regarding his service-connected knee disabilities.  The Veteran stated that he could fully extend his right knee, but could not fully flex the knee.  See Transcript, page 3.  He stated that he had fallen on the steps about two weeks prior because his knee gave way.  Id.  He could only walk about a quarter of a mile and could only squat if someone helped him up.  See Transcript, page 4.  Regarding his left knee, he stated that of late, he had noticed an increase in pain in his left knee, to the extent that such pain was now "a daily thing."  See Transcript, page 9.  When further questioned as to whether his left knee ever "gave out," the Veteran replied "not to my knowledge."  See Transcript, page 16.

A May 1994 private medical record from R.P., M.D. states that the Veteran was placed on permanent restriction of no repeated deep knee bends or lifting from squatted position.  He was able to do occasional lifting from 20 to 40 pounds.  This represented no change in his restrictions since October 1993.

In a statement of early June 1994, a private physician wrote that, with the exception of some discomfort on deep knee bending, the Veteran's knees were stable, and exhibited a full range of motion.

April 1995 to December 1995 private medical records indicate that the Veteran had an injury to his low back in April 1995, with a diagnosis of low back strain and disc herniation to the left at L4-5, per October 1995 computed tomography (CT) of the lumbar spine.  It was noted in a December 1995 employee record from the Veteran's employer that the Veteran was found fit for limited duty until March 1996 and was recommended for no lifting greater than 15 pounds, no prolonged bending, stooping, no trunk twisting or crawling, and no standing or sitting for more than 30 minutes at a time due to his low back strain.

On VA orthopedic examination in October 1996, the Veteran stated that, as a result of his service-connected knee disabilities, two years ago, he was absent for 
10 months from his job.  Currently, he had been re-trained and would work as a clerk instead of being a mechanic and heavy equipment worker.  Current complaints consisted of popping and clicking, as well as pain in both knees.  According to the Veteran, with the use of (anti) inflammatory medication, he was able to "hold up the pain" pretty well.  While in the past, the Veteran had utilized knee braces on both knees, he was currently wearing a brace only on his left knee.

The physician noted that the Veteran's claims file was available, and had been reviewed.  Physical examination revealed the Veteran to limp on his right leg, though he was able to walk on both his toes and heels.  Deep knee bending was to 80 degrees, with pain in the bilateral heels.  Lower extremity strength was normal on the right, and 4/5 on the left.  The Veteran's ligaments were within normal limits, and there was no evidence of either tenderness or effusion.  Crepitus was present, somewhat more on the left than the right, accompanied by a complaint of pain on full extension.  Range of motion measurements showed flexion to 110 degrees on the right, and to 104 degrees on the left, accompanied by pain.  McMurray's test resulted in pain and groaning bilaterally.  The Apley test likewise resulted in pain and groaning, but with no locking or "popping" noises.  Radiographic studies of both knees failed to reveal evidence of any abnormality.  MRI was consistent with a small effusion in the right knee and a normal left knee.  The pertinent diagnoses were small effusion of the right knee, and left knee strain.

VA outpatient treatment records covering the period from December 1997 to February 1998 show treatment during that time for various knee problems.  In mid-December 1997, the Veteran complained of pain in both knees, described as an "achy" pain, which was somewhat worse when the Veteran first started moving in the morning.  According to the Veteran, his leg would lock only occasionally, and then "give out."  On physical examination, there was evidence of increased left knee pain on flexion and extension.  The McMurray's and Apley tests were negative for both the right and left knees.  The clinical assessment was patellofemoral syndrome.

During the course of VA outpatient orthopedic treatment in mid-February 1998, the Veteran complained of bilateral anterior knee pain.  Radiographic studies were described as within normal limits.  Physical examination was negative for any effusion, though the Veteran's patellae were "tight" bilaterally.  Both of the Veteran's patellae tracked well, and there was no evidence of instability or joint line pain.

February 26, 1998 VA X-rays of the bilateral knees revealed bilateral minimal osteoarthritis, with bilateral patellar spurs, and no evidence of fracture.

On outpatient VA orthopedic evaluation in August 1998, the Veteran gave a history of pain in both knees of 13 years' duration.  Current complaints included "popping" and "squeaking," as well as periodic "giving out" of both knees.  On physical examination, there was no evidence of any crepitus, or of varus/valgus instability.  The drawer sign was negative bilaterally, though the left anterior drawer maneuver produced some pain.  The McMurray test was negative, and there was a positive "pop" in the joint line bilaterally.  Range of motion measurements showed extension to 175 degrees, and flexion to 100 degrees, bilaterally.  At the time of evaluation, both patellar tracking and "tilt" were within normal limits.

A September 1998 VA physical therapy record indicates that the Veteran was tender to palpation along the left medial collateral ligament and medial tibial plateau.  The bilateral patellae laterally shifted.  Flexion of the right and left knees was to 90.  Flexion on the left was limited by patellar pain and flexion on the right was limited by tight quadriceps.  There was full extension bilaterally.  Posterior sag test, anterior drawer test, and posterior drawer test were all negative.  McMurray test on the left was positive for medial meniscus.  Apley compression test was positive.

In early October 1999, an additional VA orthopedic examination was accomplished.  At the time of examination, it was noted that the Veteran's claims file was available, and had been reviewed.  Currently, the Veteran complained of daily knee pain, with the left knee worse than the right.  His walking was "limited," consisting of less than two blocks.  According to the Veteran, he could stand for less than five to seven minutes.  He stated that were he to stand and walk longer than that, he would experience increased pain.  When questioned, the Veteran stated that rainy or snowy weather increased his knee pain and reportedly, overall activity was decreased when his knee symptoms increased.  The VA examiner could not determine whether the Veteran's knee motion decreased with "flare-ups" from the Veteran's reported history.  When questioned regarding his medication, the Veteran stated that the only medication he took was for his back.  The Veteran no longer used a cane, but rather utilized bilateral Neoprene knee braces with medial and lateral hinges.  According to the Veteran, his left knee was worse than his right, manifested by periodic swelling and "giving way," but no locking.  Additionally noted was that he had no pain when sitting, and no pain in bed.  The examiner noted that from the history, he would conclude that the Veteran's limitation of activities were secondary to his knees and perhaps to his back, but not because of the right ankle or right leg, or right gastrocnemius or Achilles tendon.

On physical examination, there was moderate pain present in the Veteran's left knee. Alignment of the Veteran's legs on standing was within normal limits.  Ambulation showed a limp, with both knees tending to "give" as the Veteran walked.  The Veteran was able to come to a tip-toe standing position, and to maintain his body weight.  However, according to the Veteran, he was not able to walk on his tip-toes due to pain.  At the time of evaluation, the Veteran was able to squat to 130 degrees, but experienced left knee pain on rising.  Range of motion measurements (measured with a goniometer) showed flexion to 130 degrees, and full (0 degrees) extension bilaterally.  There was moderate patellofemoral crepitus in the left knee, but with no joint effusion on either the right or left.  Tenderness was present in the peripatellar areas on the right and left, the Lachman's test was negative.  At the time of evaluation, there was no evidence of varus or valgus laxity.  Anterior and posterior drawer signs were described as negative.  Strength of the right and left quadriceps muscles was estimated at 4/5.  Radiographic studies of both knees showed evidence of only mild narrowing of the medial joint compartment on either side, with the joint spaces themselves well-maintained.  There was no evidence of fracture, dislocation, or destructive bony lesion, or of significant joint effusion.  In the opinion of the examiner, the Veteran did suffer from a functional loss secondary to pain and weakness due to his knees.  Additionally noted were problems with "flare-ups" of increased pain secondary to activity and weather changes.  

In a rating decision of December 1999, the RO granted a 10 percent rating for the Veteran's service-connected left chondromalacia patella, effective October 4, 1999, the date of the aforementioned VA orthopedic examination.

During the course of an RO hearing in January 2000, the Veteran stated that he would miss between five to 10 days per year because of his knees and he had been constant with missing that amount of days throughout the years.  See Transcript, page 4.  The Veteran's accredited representative argued that the Veteran's claim for an increased rating for his service-connected knee disabilities was premised primarily upon painful motion.  See Transcript, page 13.

In a rating decision of February 2000, the RO continued the previously-assigned 
10 percent rating for the Veteran's chondromalacia patella of the right knee with degenerative changes.  That same rating decision amended the effective date assigned for the Veteran's 10 percent rating for chondromalacia patella of the left knee with degenerative changes to February 26, 1998, the date of radiographic studies first showing evidence of osteoarthritis of the left knee.

In June 2000, an additional VA orthopedic examination was accomplished.  At the time of the examination, it was noted that the Veteran's claims file was available and had been reviewed.  Additionally noted was that the Veteran was currently on a "work-related disability" regarding his knees, and possibly his back.  When questioned, the Veteran stated that his knees were "no worse" than when he was examined in October 1999.  Current complaints consisted of pain when walking as much as a block, as well as swelling in his knees "from time to time."  According to the Veteran, the swelling occurred approximately three times per month.  Additional complaints included morning stiffness lasting approximately 20 to 30 minutes, and a "giving way" of the knee approximately two times per week.  When questioned, the Veteran stated that he wore bilateral knee braces, but took no pain medication for his knees.  There were no symptoms of locking, though the Veteran's overall endurance was somewhat decreased due to his knee problems.

On physical examination, the Veteran stated that he was "in pain."  He stood with normal alignment of his knees, and there was no evidence of varus or valgus malalignment.  At the time of examination, the Veteran displayed a rather "lumbering" gait, with no specific varus or valgus stress, and no specific limp favoring either his right or left leg.  Range of motion studies (performed with a goniometer) revealed full (0 degrees) extension and 90 degrees flexion bilaterally, with no crepitus about the patellofemoral or femorotibial joints.  There was no evidence of soft tissue swelling, and no joint effusion of either knee.  No specific tenderness was noted on palpation about the knees, which is to say, there was no joint line tenderness either medially or laterally.  Nor was there any tenderness about the patellae superiorly, inferiorly, or in the retropatellar aspect.  The Veteran's knees displayed normal tracking during both flexion and extension, and there was no subluxation of the patellae.  Ligament examination revealed normal varus and valgus strength, and Lachman's test was negative, as were the anterior and posterior drawer signs.  At the time of evaluation, strength of the hamstrings and quadriceps was estimated at 3/5 on both the right and left, and was under complete control of the Veteran.  The pertinent diagnosis was bilateral knee pain.

In the opinion of the examiner, the Veteran showed no symptoms of locking or joint effusion, though he did give some history of swelling.  There was no pain during range of motion.  The examiner also opined that there would be no additional limitation of motion with fatigue, or due to or during "flare ups."  Further, the examiner found that the Veteran did not have incoordination.

A July 2001 leave statement for the Veteran's place of employment shows that the Veteran used 32 hours of sick leave for the year and used 168 hours of annual leave for the year.

During the course of the hearing before a traveling Veterans Law Judge in July 2001, the Veteran complained of pain, swelling, and a "giving way" of his right knee.  See Transcript, page 3 (T. at 3).  The Veteran reported his arthritis was diagnosed in service in 1982.  (T. at 5).  He complained of constant pain.  (T. at 5-6).  He related that he used 90 percent of his sick leave for his knee problems.  (T. at 8-9).  The Veteran further maintained that he lost 10 months of work in 1993 due to his knee disabilities.  (T. at 19-21).  The Veteran's accredited representative argued that, in his opinion, previous evaluations had discounted "painful motion" of the Veteran's knees, as well as a "functional impairment" associated with that pain.  (T. at 20).

On VA orthopedic examination in April 2004, it was noted that the Veteran's claims file was available, and had been reviewed.  Reportedly, prior to February 2004, the Veteran had worked as a tools and parts clerk with the United States Postal Service.  According to the Veteran, this required him to stand behind the counter, and to get various tools and parts, which sometimes required climbing stairs or bending.  When further questioned, the Veteran stated that, over the course of a year, he would typically lose 25 to 30 days of work due to his knees, which were "worse on some days than others."

During the physical examination, the Veteran was seen unaccompanied in the examining room.  The Veteran was observed to be wearing bilateral knee braces, which, by his own report, he had used since 1987.  Current complaints consisted of daily pain which was worse on some days than others, depending upon the amount of time the Veteran stood or walked.  According to the Veteran, he was able to walk three blocks, at which point he found it necessary to rest due to knee pain.  Also noted was pain on climbing stairs, more so than in going downstairs.  According to the Veteran, his knees rarely (approximately once every three months) gave way.  Reportedly, on those occasions, he tended to catch himself prior to falling.  The Veteran voiced no complaints of locking of his knees, though he did report stiffness when first getting up after sitting and in the morning.  Also noted were problems with fatigability.

When questioned regarding his pain, the Veteran described the area in question as "under his kneecaps."  However, the Veteran denied any problems with joint swelling.  According to the Veteran, he experienced pain on movement of his knees such that he generally needed assistance in putting on his shoes and socks.  The Veteran denied any history of incoordination leading to falling other than on those occasions when his knee tended to give way, which was "rarely."  This was felt not to be the result of incoordination, but rather due to knee pain and weakness.

When further questioned, the Veteran stated that he frequently took days off from work due to his knee problems.  However, there was no indication that the Veteran experienced any change in the range of motion of his knees during periods of increased pain.  According to the examiner, it was impossible to determine the degree of industrial impairment directly attributable to the Veteran's service-connected knee disability, inasmuch as he also suffered from a back condition.

On physical examination, the Veteran's overall health status appeared good, though he was in moderate pain.  The Veteran moved about and changed his position in the office, during the course of which the standing alignment of both knees was normal, with no evidence of varus or valgus deformity.  The Veteran displayed a somewhat unusual gait, which was described as rather "lumbering," characterized by a stiff leg and some "waddling."  In the examining room, the Veteran tended to favor his right knee, leading to a tendency for the right knee to give way slightly as he walked across the room.

When holding onto the examining table, the Veteran was able to squat to 60 degrees, though with bilateral anterior knee pain.  Range of motion measurements of the Veteran's right knee as measured with a goniometer showed full extension to 0 degrees with slight anterior knee pain and flexion to 90 degrees, at which point there was anterior knee pain.  The Veteran was able to flex a bit farther to 95 degrees, though with pain.

Range of motion studies of the Veteran's left knee showed full extension to 
0 degrees with anterior knee pain and flexion to 90 degrees accompanied by anterior knee pain.  Additional knee flexion was present to 100 degrees, though with pain during the last 10 degrees.

No patellofemoral or femorotibial crepitus was palpated on examination, nor were any soft tissue abnormalities noted.  Further examination revealed mild to moderate peripatellar tenderness on both the right and left knees, though with no evidence of any joint effusion.  Sensation was normal, and both patellar alignment and tracking were within normal limits.

Ligament testing showed no evidence of ligamentous laxity to valgus stress.  The anterior and posterior drawer signs were negative, as was Lachman's test.  The Veteran complained of anterior right knee pain during varus or valgus stressing of the right knee.  Strength in both the right and left hamstring and quadriceps was described as 3/5.  Radiographic studies showed five degrees of varus of the left knee in the standing position.  Joint space narrowing was described as very minimal, and unchanged.  Radiographic study of the patellofemoral joints was within normal limits, with no evidence of any progressive arthritic condition.  The pertinent diagnosis was bilateral knee pain, previously diagnosed as chondromalacia patella.  In the opinion of the examiner, comparison of previous and current X-ray studies suggested that there had been no change in the Veteran's X-rays (at least of the right knee) during the period from 1993 to 1999.  Current X-rays revealed no progressive arthritic condition and there was very minimal joint space narrowing for both the right and left knees.

On VA orthopedic examination in August 2009, it was noted that the Veteran's claims file was available, and had been reviewed.  The Veteran reported using knee braces since 1992.  The Veteran also reported that eight to ten times per month, it felt like his knees were going to give way and that he lost balance when going up steps.  The Veteran also reported a small amount of swelling and pain under the kneecaps.  

On physical examination, the Veteran appeared to be in moderate pain during the examination.  The Veteran moved about and changed his position in the office, during the course of which the standing alignment of both knees was normal, with no evidence of varus or valgus deformity; however, the Veteran displayed a somewhat unusual gait.  

When holding onto the examining table, the Veteran was able to squat to 30 degrees, though with bilateral anterior knee pain.  Range of motion measurements of the Veteran's right knee as measured with a goniometer showed full extension to 0 degrees and flexion to 100 degrees, with pain throughout the entire range of motion.  Range of motion studies of the Veteran's left knee showed full extension to 0 degrees and flexion to 110 degrees, with pain throughout the entire range of motion.  There was also no noted additional limitation on motion with repetitive use; however, the VA examiner did report increased pain, weakness, and fatigability.  

Ligament testing showed no evidence of ligamentous laxity to valgus stress.  The anterior and posterior drawer signs were negative, as was Lachman's test.  The Veteran complained of anterior right knee pain during varus or valgus stressing of the right knee.  In the opinion of the examiner, comparison of previous and current X-ray studies suggested that there had been no change in the Veteran's X-rays during the period from 2004 to 2009.  Current X-rays revealed very minor superior spur formation of the patellae, but no progressive arthritic condition and no minimal joint space narrowing for both the right and left knees.  A December 2009 VA MRI reflected normal left and right knees.  

On VA orthopedic examination in September 2010, it was noted that the Veteran's claims file was available, and had been reviewed.  The Veteran reported "locking" in both of his knees and also reported that his knees would become puffy sometimes.  The Veteran also reported it was impossible to walk up stairs and that he was taking hydrocodone three times per day for knee pain.  

On physical examination, the Veteran was unable to flex his knees to 90 degrees to push himself up to standing.  The Veteran's wife had to remove his shoes, trousers, and left knee brace.  Range of motion measurements of the veteran's right knee as measured with a goniometer showed extension to 15 degrees and flexion to 35 degrees, with pain throughout the entire range of motion.  Range of motion studies of the Veteran's left knee showed extension to 20 degrees and flexion to 40 degrees, with pain throughout the entire range of motion.  The VA examiner also reported the symptoms were constant, but not associated with any flare-ups, and that there was no subluxation or lateral instability of the knees.

On VA orthopedic examination in March 2011, it was noted that the Veteran's claims file was available, and had been reviewed.  The Veteran reported walking with bilateral knee braces.  The Veteran moved about and changed his position in the office, during the course of which the standing alignment of both knees was normal, with no evidence of varus or valgus deformity.  The Veteran displayed a somewhat unusual gait, which was described as "stiff-legged."  

On physical examination, the Veteran was able to flex his knees to 80 degrees to push himself up to standing.  Range of motion measurements of the Veteran's right knee as measured with a goniometer showed extension to 10 degrees and flexion to 50 degrees, with pain throughout the entire range of motion.  Range of motion studies of the veteran's left knee showed extension to 10 degrees and flexion to 50 degrees, with pain throughout the entire range of motion.  There was also no noted additional limitation on motion with repetitive use; however, the VA examiner did report increased pain, weakness, and fatigability.  The VA examiner also reported the symptoms were constant, but not associated with any flare-ups, and that there was no subluxation or lateral instability of the knees.  Current X-rays revealed no very minimal joint space narrowing for the right knee.

Rating Legal Criteria

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; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs).  38 C.F.R. § 4.27 (2013).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.  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.  When the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2013).

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of a veteran.  See 38 C.F.R. § 4.3.

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 increased rating claims.

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 portrays 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 innervations, 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 which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

In Burton v. Shinseki, the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Later in the month, the Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id.  

In Mitchell, the 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 rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011);

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, DCs 5003, 5010.  DC 5010 (traumatic arthritis) directs that arthritis be rated under DC 5003 (degenerative arthritis), which states that 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, DC 5010.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5010.  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under DC 5003.  38 C.F.R. § 4.71a, DC 5010, Note 1.

With respect to disabilities of the knee, 38 C.F.R. § 4.71a, DCs 5256 through 5262, set forth relevant provisions.  Specifically, DC 5256, which governs ankylosis of the knee, provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees.  A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees.  A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more.

The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.  

DC 5257 governs other impairment of the knee.  It assigns respective ratings of 
10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee.  38 C.F.R. § 4.71a.

DC 5258 provides for a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  
38 C.F.R. § 4.71a.

DC 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a.

DCs 5260 and 5261 set forth rating schedules for limitation of motion of the leg.  
38 C.F.R. § 4.71a, DCs 5260, 5261. With respect to limitation of leg flexion, DC 5260 provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees.  38 C.F.R. § 4.71a.

DC 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees.  38 C.F.R. § 4.71a.  

Under DC 5262, impairment of the tibia and fibula characterized by malunion with moderate knee or ankle disability warrants a 20 percent evaluation, while malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating.  38 C.F.R. § 4.71a.

Separate disability ratings are possible for arthritis with limitation of motion under DCs 5003 and instability of a knee under Diagnostic Code 5257.  See VAOPGCPREC 23-97.  When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain.  See VAOPGCPREC 9-98.  The Board also notes that separate ratings under DCs 5260 and 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping.  See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint).

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2).   

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a veteran's claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 



Left Knee Increased Disability Rating

The Veteran is in receipt of a noncompensable (0 percent) rating for service-connected left knee chondromalacia patellae with degenerative changes for the increased rating period prior to February 26, 1998, and a rating of 10 percent thereafter under the provisions of 38 C.F.R. § 4.71a, DC 5260-5010.  See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned).  The Veteran is also in receipt of a separate 30 percent initial rating for service-connected residuals of left knee chondromalacia patella for limitation of extension for the rating period from September 28, 2010 under the provisions of 38 C.F.R. § 4.71a, DC 5261.

Rating Period prior to February 26, 1998

In applying the law to the existing facts, the Board finds that for the time period of prior to February 26, 1998, the disability picture for the left knee chondromalacia patella more closely approximates the criteria for a 10 percent rating under the provisions of Diagnostic Codes 5003 and 5260 when consideration is given to the functional loss of the left knee due to pain, weakness, and noncompensable limited motion of the knee.  See 38 C.F.R. §§ 4.40, 4.45.  See also Mitchell; supra; Burton; supra, and DeLuca; supra. 

The Board finds that a 10 percent evaluation is warranted for the left knee chondromalacia under 38 C.F.R. § 4.71a, Diagnostic Code 5260, when consideration is given to 38 C.F.R. §§ 4.40, 4.45, and 4.59, and the Court's holdings in Deluca, Burton, and Mitchell.  For the time period prior to February 26, 1998, the competent and credible evidence shows that the left knee disability is productive of functional loss and impairment due to pain, noncompensable limitation of flexion, and weakness.  The evidence of record shows that the limitation of function caused work restrictions for the Veteran.  


VA's policy is to treat actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  This regulation applies to any service-connected joint disability, not just arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned.  This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). 

In the present case, for the time period in question, the medical evidence shows that the left knee disability is productive of functional loss and impairment due to pain, noncompensable limitation of flexion, and weakness.  The medical evidence shows a limitation of flexion of the left knee; left knee flexion ranged from 104 degrees to 130 degrees.  See the private orthopedic records dated in May 1993, September 1993, and October 1993; VA examination reports dated in January 1994 and October 1996; and VA treatment records dated from December 1997 to February 1998.  In a May 1993 private orthopedic examination, range of motion measurements showed full extension and flexion to 130 degrees bilaterally.  In an August 1993 VA orthopedic examination, range of motion measurements showed flexion of the left knee was between 110 and 115 degrees.  In a January 1994 VA orthopedic examination, range of motion measurements showed flexion to 128 degrees on the left.  In a 1996 VA orthopedic examination, range of motion measurements showed flexion to 104 degrees on the left and full extension, accompanied by pain.  

The October 1993 private orthopedic record indicates that the Veteran had knee pain due to weakness and patellofemoral dysfunction and he had some restrictions at work; the Veteran was restricted from deep knee bends and squatting.  A May 1994 record indicates that the Veteran had a permanent vocational restriction.  The Veteran reported having impairment of function in occupational settings, such as frequently having to sit down and rest and difficulty climbing stairs.  The October 1996 VA examination report indicates that the Veteran had limitation of flexion of the left knee to 104 degrees with pain.  The VA treatment records indicate that the Veteran had increased pain in the left knee on flexion and extension.  

38 C.F.R. § 4.59 indicates that the intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating.  Based upon 38 C.F.R. § 4.59 and the Court's holdings in Burton and Mitchell, the Board finds that a 10 percent rating, the minimum compensable rating under Diagnostic Code 5260, is warranted for the left knee chondromalacia patella for the time period prior to February 26, 1998. 

Entitlement to a Disability Rating in excess of 10 percent for the Left Knee Disability

The Board finds that, for the entire increased rating period, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the service-connected left knee chondromalacia patella disability under Diagnostic Code 5010 and applicable criteria for rating based on limitation of motion.  For the entire period of the appeal, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the left knee does not more closely approximate limitation of flexion to 30 degrees or less.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  For a 20 percent rating under Diagnostic Code 5260, the evidence must show forward flexion that more nearly approximates limitation to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  As discussed above, for the time period prior to February 26, 1998, the flexion of the left knee ranged from 104 degrees to 130 degrees with pain on motion.  For the time period from February 1998 to 2009, flexion of the left knee ranged from 90 degrees to 130 degrees.  

An August 1998 VA treatment record indicates that range of motion measurements for the knees showed flexion to 100 degrees, bilaterally.  In a September 1998 VA treatment record, flexion of left knee was to 90 degrees.  In an October 1999 VA orthopedic examination, range of motion measurements for the knees showed flexion to 130 degrees, and full (0 degrees) extension bilaterally.  In a June 2000 VA orthopedic examination, range of motion measurements of the knees revealed 90 degrees of flexion bilaterally.  In an April 2004 VA orthopedic examination, range of motion studies of the left knee showed flexion to 90 degrees accompanied by anterior knee pain.  In an August 2009 VA orthopedic examination, range of motion measurements of the left knee showed flexion to 110 degrees, with pain throughout the entire range of motion.  Upon VA examination in September 2010, flexion of the left knee was to 40 degrees and upon VA examination in March 2011, flexion of the left knee was to 50 degrees.  

The evidence shows that the flexion of the left knee was well beyond 30 degrees for most of the appeal period.  The VA examination reports in September 2010 and March 2011 show a more limited flexion of the left knee but motion was still beyond 30 degrees, which is required for the assignment of a 20 percent rating under Diagnostic Code 5260.  

The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 or functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45.  See Deluca; supra.  However, there is no showing of an additional limitation of flexion of the left knee due to pain or other symptoms that more nearly approximates the criteria for a 20 percent rating.  The March 2011 VA examination report specifically notes that pain was considered with range of motion.  The examiner indicated that there was no noted additional limitation of motion with repetitive use but there was some increased pain, weakness, and fatigability.  Flexion of the left knee was to 50 degrees.  Pain was also considered with range of motion testing in September 2010, August 2009, April 2004, and June 2000.  

The August 2009 VA examination report noted that there was no additional limitation of motion repetitive use but there was increased pain, weakness, and fatigability.  Flexion of the left knee was to 110 degrees.  The April 2004 VA examination report notes that there was no indication that the Veteran experienced any change in range of motion of his knees during periods of increased pain.  The June 2000 VA examination report indicates that there was no pain during range of motion and there was no additional limitation of motion with fatigue or due to or during flare-ups and the Veteran did not have any incoordination.  The October 1999 VA examination report notes that the Veteran experienced functional loss secondary to pain and weakness due to his knees.   

Overall, the 10 percent rating for the service-connected left knee disability is found to encompass any additional functional loss due to pain and due to other symptoms.  Here, the Board notes the Veteran's reported impairment of function in occupational settings, such as frequently having to sit down and rest and difficulty climbing stairs, and has considered the symptoms of pain and other orthopedic factors that limit functional use.  However, the disability picture in this sense is not shown to have caused a restriction of flexion due to pain that would equate with or more closely approximate flexion limited to 30 degrees or less.  See DeLuca; supra.  As discussed in detail above, there is flexion of the left knee beyond 30 degrees when pain, weakness, fatigability and lack of endurance are considered.  Based on the evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 in this case.  The Veteran does have some limitation of motion, due to pain; however, this is encompassed in the current 10 percent rating under DC 5260-5010.  

Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, 1 Vet. App. 589.  However, the Board finds no basis upon which to assign an evaluation in excess of 10 percent for the Veteran's left knee disability for the time period of the appeal.  In this regard, the Board notes there is no medical evidence of malunion or nonunion of the tibia and fibula, semilunar, dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint, or ankylosis associated with the left knee that would support a higher evaluation under the criteria set forth in DCs 5256, 5258, or 5262.  38 C.F.R. § 4.71a.  In addition, there has not been any removal of semilunar cartilage and no evidence of genu recurvatum; therefore DCs 5259 and 5263 are also not applicable.  38 C.F.R. § 4.71a.

The service-connected left knee chondromalacia patella disability may also be rated in the alternative under Diagnostic Code 5261, limitation of extension of the knee.  As discussed in detail below, a separate 30 percent rating is assigned from September 28, 2010 under Diagnostic Code 5261, limitation of extension of the knee pursuant to VAOPGCPREC 9-2004.  Thus, the Board will consider whether a rating in excess of 10 percent is warranted for the service-connected left knee chondromalacia patella disability under Diagnostic Code 5261 prior to September 28, 2010.  Additional considerations of a higher disability rating pursuant to VAOPGCPREC 9-2004 are addressed below.    

The Board finds that prior to September 28, 2010, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the service-connected left knee chondromalacia patella disability based on limitation of extension of the knee.  For this time period, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the left knee does not more closely approximate limitation of extension to 15 degrees or more but in fact, the weight of the competent and credible evidence shows that the Veteran had full extension of the left knee for this time period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  The weight of the competent and credible evidence shows that the Veteran had full extension of the left knee, even when pain was considered until the September 2010 VA examination when limitation of extension was detected.  

The Board notes that an August 1998 VA examination report indicates that the range of motion of the knees was extension to 175 degrees and flexion to 100 degrees.  The Board has the duty to assess the credibility and weight to be given to the evidence.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein.  The Court in Madden held that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997).  

The Board finds that the range of motion finding for extension of the knees in the August 1998 VA examination report are not probative.  These findings are incompatible with the normal range of motion of the knee, which is from zero degrees to 140 degrees.  See Plate II.  According to Plate II, it does not appear possible for a knee to extend to 175 degrees.  The examiner who performed the August 1998 VA examination did not comment on the incompatible range of motion findings for extension of the knee.  The Board finds that the range of motion findings from this examination are not the product of reliable principles and methods and it appears that a reliable method for testing range of motion of the left knee was not used or the findings were reported in error.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

The Board finds that the range of motion studies set forth in the VA examination reports dated in August 1993, January 1994, October 1996, October 1999, June 2000, April 2004, August 2009, September 2010, and March 2011, and the private evaluation reports dated in May 1993, June 1994, and September 1998 are competent and credible and outweigh the findings in the August 1998 report.  The range of motion studies in these reports are compatible with the normal range of motion of the knee as shown in Plate II.  Further, the VA examination reports dated in October 1999, June 2000, April 2004, August 2009, and September 2010 indicate that the range of motion of the knee was tested using a goniometer.  A goniometer is an instrument used to clinically measuring angles of joint motion.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1779 (30th ed. 2003).  Thus, the Board finds that the range of motion studies in the VA examination reports and private evaluations listed above are more probative and outweigh the findings in the August 1998 report.  The Board finds that the range of motion findings for extension from the August 1998 VA examination are not probative and cannot be used to evaluate the severity of the left knee disability.    

The weight of the competent and credible evidence for the time period in question shows that the Veteran had full extension of the left knee.  There is no evidence of any additional loss of extension on left knee motion due to pain or other factors such as weakness.  Based on the evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45.  Based upon these findings, the assignment of a disability rating in excess of 10 percent under Diagnostic Code 5261 for chondromalacia patella with degenerative changes of the left knee is not warranted prior to September 28, 2010.   

VAOPGCPREC 23-97 and VAOPGCPREC 9-98 have been considered and applied in this case.  The medical evidence of record for the entire time period of the appeal shows that the service-connected left knee disability is not manifested by instability or subluxation.  Thus, a separate compensable rating for instability of the left knee in addition to arthritis is not for application for the any period of the appeal.

A separate rating based on limitation of extension of the left knee

A separate 30 percent rating based on limitation of extension of the left knee pursuant to VAOPGCPREC 9-2004 is assigned under Diagnostic Code 5261 from September 28, 2010.  

The Board finds that the weight of the competent and credible evidence shows that there is no limitation of extension of the left knee prior to September 28, 2010.  The weight of the competent and credible evidence shows that the Veteran had full extension of the left knee even when pain was considered until the September 2010 VA examination when limitation of extension was detected.  For the reasons set forth above, the Board finds that the range of motion findings for extension of the knees in the August 1998 VA examination report are not probative.  These findings are incompatible with the normal range of motion of the knee, which is from zero degrees to 140 degrees.  See Plate II.  According to Plate II, it does not appear possible for a knee to extend to 175 degrees.  The examiner who performed the August 1998 VA examination did not comment on the incompatible range of motion findings for extension of the knee.  The Board finds that the range of motion findings from this examination are not the product of reliable principles and methods or that a reliable method for testing range of motion of the left knee was used.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

The Board finds that the range of motion studies set forth in the VA examination reports dated in August 1993, January 1994, October 1996, October 1999, June 2000, April 2004, August 2009, September 2010, and March 2011, and the private evaluation reports dated in May 1993, June 1994, and September 1998.  The range of motion studies in these reports are compatible with the normal range of motion of the knee as shown in Plate II.  Further, the VA examination reports dated in October 1999, June 2000, April 2004, August 2009, and September 2010 indicate that the range of motion of the knee was tested using a goniometer.  Thus, the Board finds that the range of motion studies in the VA examination reports and private evaluations cited above are more probative and outweigh the findings in the August 1998 report.   Based on the evidence of record, there is no basis for the assignment of a separate compensable rating based on limitation of extension of the left knee prior to September 28, 2010.

A rating higher than 30 percent for limitation of extension of the left knee under Diagnostic Code 5261 is not warranted from September 28, 2010.  In the August 2012 decision, the Board found that for the initial rating period from September 28, 2010, the evidence was at least in relative equipoise as to whether the Veteran's residuals of chondromalacia patella of the left knee manifested extension limited to 20 degrees as required for a 30 percent disability rating under DC 5261.  

In the September 2010 VA orthopedic examination, range of motion studies of the Veteran's left knee showed extension to 20 degrees and flexion to 40 degrees, with pain throughout the entire range of motion.  In a March 2011 VA orthopedic examination, range of motion studies of the Veteran's left knee showed extension to 10 degrees and flexion to 50 degrees, with pain throughout the entire range of motion.  Based upon these findings, and resolving reasonable doubt in the Veteran's favor, the Board found that the assignment of a 30 percent rating for residuals of chondromalacia patella of the left knee, limitation of extension, was warranted under DC 5261 for the rating period from September 28, 2010.  38 C.F.R. § 4.71a.

The Board finds that, from September 28, 2010, the record does not demonstrate the requisite manifestations for a rating in excess of 30 percent for the service-connected left knee chondromalacia patella disability based on limitation of extension of the knee.  For this time period, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the left knee does not more closely approximate limitation of extension to 30 degrees or more.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  As discussed, the medical evidence for the time period in question shows that extension of the left knee was limited to 10 degrees to 20 degrees.  There is no evidence of any additional limitation of extension of the left knee due to functional loss due to pain or other factors.  Thus, the Board finds that the assignment of a disability rating in excess of 30 percent for chondromalacia patella with degenerative changes of the left knee based on limitation of extension from September 28, 2010 is not warranted. 

Right Knee Increased Disability Rating

The Veteran is in receipt of a 10 rating for service-connected right knee chondromalacia patellae with degenerative changes under the provisions of 38 C.F.R. § 4.71a, DC 5260-5010.  See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned).  The Veteran is also in receipt of a separate 10 percent rating for service-connected residuals of chondromalacia patella of the right knee for limitation of extension for the initial rating period from September 28, 2010 under the provisions of 38 C.F.R. § 4.71a, DC 5261.

The Board finds that, for the entire increased rating period, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the service-connected right knee chondromalacia patella disability under Diagnostic Code 5010 and applicable criteria for rating based on limitation of motion.  For the period of the appeal, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the right knee does not more closely approximate limitation of flexion to 30 degrees or less.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  For a 20 percent rating under Diagnostic Code 5260, the evidence must show forward flexion that more nearly approximates limitation to 30 degrees.  The weight of the competent and credible evidence shows that for the time period prior to September 28, 2010, flexion of the right knee ranged from 90 degrees to 140 degrees with pain on motion.  For the time period from September 28, 2010, flexion of the right knee ranged from 35 degrees to 50 degrees.  

Here, the Board finds that, based on measures of range of motion of the right knee, the Veteran's right knee disability does not more nearly approximate limitation of flexion to 30 degrees.  In a May 1993 private orthopedic examination, range of motion measurements of the knees showed 130 degrees of flexion bilaterally.  In a January 1994 VA orthopedic examination range of motion measurements for the right knee showed flexion to 125 degrees.  In an October 1996 VA orthopedic examination, range of motion measurements of the right knee showed flexion to 110 degrees, accompanied by pain.  In an August 1998 VA treatment record, range of motion measurements for the knees showed flexion to 100 degrees, bilaterally.  

In an October 1999 VA orthopedic examination, range of motion for the knees showed flexion to 130 degrees.  In a June 2000 VA orthopedic examination, range of motion measurements for the knees revealed 90 degrees of flexion bilaterally.  In an April 2004 VA orthopedic examination, range of motion measurements of the  left knee showed flexion to 90 degrees accompanied by anterior knee pain.  In an August 2009 VA orthopedic examination, range of motion measurements of the Veteran's right knee as measured with a goniometer showed flexion to 100 degrees, with pain throughout the entire range of motion.  In a September 2010 VA orthopedic examination, range of motion measurements of the Veteran's right knee as measured with a goniometer showed flexion to 35 degrees, with pain throughout the entire range of motion.  In a March 2011 VA orthopedic examination, range of motion measurements of the Veteran's right knee as measured with a goniometer showed flexion to 50 degrees, with pain throughout the entire range of motion.  

The Board has considered whether a higher disability rating than 10 percent is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, 8 Vet. App. 202.  Here, the Board notes the Veteran's reported impairment of function in occupational settings, such as frequently having to sit down and rest and difficulty climbing stairs, and has considered additional limitations of motion due to pain or other orthopedic factors.   The Veteran does have some limitation of motion, due to pain; however, this is encompassed in the current 10 percent rating under DC 5260-5010.  The range of motion testing considered limitation of motion due to functional loss due to factors such as pain, weakness, or fatigability.  For example, a range of motion summary in August 2009 indicated right knee showed flexion to 100 degrees.  The August 2009 VA compensation examination report also reflects specific findings of no additional limitation of motion with repetitive use.  In the March 2011 VA orthopedic examination, range of motion measurements of the Veteran's right knee as measured with a goniometer showed flexion to 50 degrees and the report shows specific findings of no noted additional limitation on motion with repetitive use.  The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board.  Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain.  

Overall, the 10 percent rating for the service-connected right knee disability is found to encompass any additional functional loss due to pain and due to other symptoms.  The disability picture in this sense is not shown to have caused a restriction of flexion due to pain that would equate with flexion limited to 30 degrees or less.  See DeLuca; supra.  As discussed in detail above, there is flexion of the right knee beyond 30 degrees when pain, weakness, fatigability and lack of endurance are considered.  Based on the evidence of record, there is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 in this case.  

Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath, 1 Vet. App. 589.  However, the Board finds no basis upon which to assign an evaluation in excess of 10 percent for the Veteran's right knee disability for the time period of the appeal.  In this regard, the Board notes there is no medical evidence of malunion or nonunion of the tibia and fibula, semilunar, dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint, or ankylosis associated with the degenerative joint disease of the right knee that would support a higher evaluation under the criteria set forth in DCs 5256, 5258, or 5262.  38 C.F.R. § 4.71a.  In addition, there has not been any removal of semilunar cartilage and no evidence of genu recurvatum; therefore DCs 5259 and 5263 are also not applicable.  38 C.F.R. § 4.71a.

The service-connected right knee disability may also be rated in the alternative under Diagnostic Code 5261, limitation of extension of the knee.  As discussed in detail below, a separate 20 percent rating is assigned from September 28, 2010 under Diagnostic Code 5261, limitation of extension of the knee pursuant to VAOPGCPREC 9-2004.  Thus, the Board will consider whether a rating in excess of 10 percent is warranted for the service-connected right knee chondromalacia patella disability under Diagnostic Code 5261 prior to September 28, 2010.  Additional considerations of a higher disability rating pursuant to VAOPGCPREC 9-2004 are addressed below.    

The Board finds that prior to September 28, 2010, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the service-connected right knee chondromalacia patella disability based on limitation of extension of the knee.  For this time period, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the right knee does not more closely approximate limitation of extension to 15 degrees or more but in fact, the weight of the competent and credible evidence shows that the Veteran had full extension of the right knee for this time period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  

The Board finds that the range of motion studies set forth in the VA examination reports dated in August 1993, January 1994, October 1996, October 1999, June 2000, April 2004, August 2009, September 2010, and March 2011, and the private evaluation reports dated in May 1993, June 1994, and September 1998 are probative and have great evidentiary weight.  The range of motion studies in these reports are compatible with the normal range of motion of the knee as shown in Plate II.  Further, the VA examination reports dated in October 1999, June 2000, April 2004, August 2009, and September 2010 indicate that the range of motion of the knee was tested using a goniometer.  Thus, the Board finds that the range of motion studies in the VA examination reports and private evaluations listed above are more probative and outweigh the findings in the August 1998 report.  The Board finds that the range of motion findings from the August 1998 VA examination are not probative and cannot be used to evaluate the severity of the left knee disability for the reasons set forth above.  The Board finds that the weight of the competent and credible evidence shows that there is no limitation of extension of the right knee prior to September 28, 2010.  The weight of the competent and credible evidence shows that the Veteran had full extension of the right knee, even when pain was considered until the September 2010 VA examination when limitation of extension was detected.  There is no basis for the assignment of a higher rating pursuant to 38 C.F.R. §§ 4.40 and 4.45.  Based upon these findings, the assignment of a disability rating in excess of 10 percent under Diagnostic Code 5261 for chondromalacia patella with degenerative changes of the right knee is not warranted prior to September 28, 2010.   

VAOPGCPREC 23-97 and VAOPGCPREC 9-98 have been considered and applied in this case.  The medical evidence of record for the entire time period of the appeal shows that the service-connected right knee disability is not manifested by instability or subluxation.  Thus, a separate compensable rating for instability of the right knee in addition to arthritis is not for application for the any period of the appeal.

Higher Initial Rating for Limitation of Extension of Right Knee

The Veteran is in receipt of a 20 percent rating for service-connected residuals of chondromalacia patella of the right knee, limitation of extension, for the initial rating period from September 28, 2010 under the provisions of 38 C.F.R. § 4.71a, DC 5261.  

The Board finds that the weight of the competent and credible evidence shows that there is no limitation of extension of the right knee prior to September 28, 2010.  The weight of the competent and credible evidence shows that the Veteran had full extension of the right knee even when pain was considered until the September 2010 VA examination when limitation of extension was detected.  See the VA examination reports dated in August 1993, January 1994, October 1996, October 1999, June 2000, April 2004, August 2009, September 2010, and March 2011, and the private evaluation reports dated in May 1993, June 1994, and September 1998.  Thus, the Board finds that the assignment of a compensable disability rating for chondromalacia patella with degenerative changes of the right knee is not warranted prior to September 28, 2010. 

A rating higher than 20 percent for limitation of extension of the right knee under Diagnostic Code 5261 is not warranted from September 28, 2010.  In the August 2012 decision, the Board found that for the initial rating period from September 28, 2010, the evidence was at least in relative equipoise as to whether the Veteran's residuals of chondromalacia patella of the right knee manifested extension limited to 15 degrees as required for a 20 percent disability rating under DC 5261.  

In the September 2010 VA orthopedic examination, range of motion studies of the Veteran's right knee showed extension to 15 degrees with pain throughout the entire range of motion.  In a March 2011 VA orthopedic examination, range of motion studies of the Veteran's right knee showed extension to 10 degrees with pain throughout the entire range of motion.  Based upon these findings, and resolving reasonable doubt in the Veteran's favor, the Board found that the assignment of a 20 percent rating for residuals of chondromalacia patella of the right knee, limitation of extension, was warranted under DC 5261 for the rating period from September 28, 2010.  38 C.F.R. § 4.71a.

The Board finds that, from September 28, 2010, the record does not demonstrate the requisite manifestations for a rating in excess of 20 percent for the service-connected right knee chondromalacia patella disability based on limitation of extension of the knee.  For this time period, the competent and credible evidence shows that the service-connected chondromalacia patella with degenerative changes of the left knee does not more closely approximate limitation of extension to 20 degrees or more.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  As discussed, the medical evidence for this time period shows that extension of the right knee was limited to 10 degrees to 15 degrees.  There is no evidence of any additional limitation of extension of the right knee due to functional loss due to pain or other factors.  Here, the Board finds that the Veteran's right knee disability does not meet the criteria for an increased rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5261 from September 28, 2010.  

Extraschedular Consideration

In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's bilateral knee disabilities.  In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).  

The schedular criteria for rating disabilities of the knee anticipate and reasonably describe the Veteran's right and left knee disabilities, including degenerative arthritis, limitation of motion, and functional loss.  The Veteran's knee disabilities have been manifested by arthritis, limitation of flexion, and limitation of extension.  The schedular rating criteria specifically contemplate such symptomatology.  The schedular rating criteria specifically provides ratings for limitation of motion due to painful arthritis (Diagnostic Codes 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited to orthopedic factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca).  The Veteran has been awarded separate evaluations for limitation of flexion and limitation of extension of the knees.  In addition, a separate rating may be assigned for the manifestation of instability of the knee joint but in this case, the medical evidence of records fails to demonstrate clinical findings of instability so as to warrant separate ratings under Diagnostic Code 5257.  

The Board notes that, in general, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  The 10 percent and 30 percent ratings assigned for the service-connected left knee disability and the 10 percent and 20 percent ratings assigned for the service-connected right knee disability contemplate the Veteran's impairment in employment due to the knee disabilities.  Although his knee disabilities may have interfered somewhat with the Veteran's ability to work, such impairment is already contemplated by the applicable schedular criteria so that consideration of an extraschedular rating is not shown to be necessary.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating, itself, is recognition that industrial capabilities are impaired).  The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5257 to 5261 (2013).

In this case, comparing the Veteran's disability level and symptomatology of the disabilities of the knees to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  The first Thun step is not met; therefore, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  


ORDER

Entitlement to a 10 percent disability rating for chondromalacia patella with degenerative changes of the left knee for the period prior to February 26, 1998 is granted. 

Entitlement to a disability rating in excess of 10 percent for chondromalacia patella with degenerative changes of the left knee for the period of the appeal is denied. 

Entitlement to a disability rating in excess of 10 percent for chondromalacia patella with degenerative changes of the right knee is denied.

For the initial rating period prior to September 28, 2010, entitlement to a separate compensable disability rating for residuals of chondromalacia patella, left knee, based on limitation of extension is denied.  

For the initial rating period from September 28, 2010, entitlement to a disability rating in excess of 30 percent rating for residuals of chondromalacia patella, left knee, limitation of extension, is denied.  

For the initial rating period prior to September 28, 2010, entitlement to a separate compensable disability rating for residuals of chondromalacia patella, right knee, based on limitation of extension is denied.  

For the initial rating period from September 28, 2010, entitlement to a disability rating in excess of 20 percent rating for residuals of chondromalacia patella, right knee, limitation of extension, is denied.  



______________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs