Citation Nr: 1334685 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-43 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher evaluation for right knee, residuals of medial plica excision, with torn medial meniscus and arthritis, currently rated at 10 percent disabling. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION 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 & Supp. 2013). The Veteran served on active duty from March 1985 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to an evaluation in excess of 10 percent for a right knee disorder, residuals of medial plica excision, with torn medial meniscus and arthritis (evaluated on the basis of limitation of motion). The Board previously remanded this case in May 2013. FINDINGS OF FACT 1. The Veteran's most pronounced limitation of motion in the right knee has been from 0 to 40 degrees, with no additional measurable impact of functional loss. There is no indication of "other" impairment of the knee with attendant recurrent subluxation or lateral instability. 2. The Veteran has manifested dislocated right knee cartilage, with frequent symptoms of "locking," pain and effusion into the knee joint. CONCLUSIONS OF LAW 1. The criteria are not met for a higher evaluation than 10 percent for right knee, residuals of medial plica excision, with torn medial meniscus and arthritis, rated on the existing basis of limitation of motion. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5260 and 5261 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met for assignment of a separate 20 percent evaluation for dislocated right knee cartilage, post-operative, symptomatic. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.71a, Diagnostic Code 5258 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2013). Through VCAA notice correspondence dated from March 2009, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The U.S. Court of Appeals for Veterans Claims (Court) in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA correspondence in this case preceded issuance of the rating decision on appeal, and thus met the standard for timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran with her claim through obtaining records of VA outpatient treatment. The Veteran has also undergone VA Compensation and Pension examinations to determine the ongoing severity of her right knee condition. See 38 C.F.R. § 4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In response to the prior Board remand, the RO/AMC has obtained additional VA outpatient treatment records, and has arranged for an updated VA Compensation and Pension examination of the right knee. Whereas one prior remand directive was to conduct a thorough search for any MRI reports dated since February 2008, and the RO/AMC responded by conducting a records search dating back only to mid-July 2008, the Board finds no detrimental impact upon adjudication of the Veteran's claim. Rather, the purpose of the inquiry into previous MRI reports was to determine whether the Veteran had qualifying right knee cartilaginous injury to support a separate rating on that basis, and indeed the Board is awarding the highest assignable 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5258 for that manifestation. Therefore, there is no prejudicial result in failure to obtain VA records from the literal time period of the few additional months directed by the Board's prior remand. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced). Meanwhile, in furtherance of her claim, the Veteran has provided several personal statements. She has not requested a hearing in connection with this matter. There is no indication of any further relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Governing Law, Regulations and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, 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). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The RO has evaluated the service-connected right knee, residuals of medial plica excision, with torn medial meniscus and arthritis, at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, pertaining to traumatic arthritis, rated on the provisions regarding limitation of leg flexion. Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Id. Also, Diagnostic Code 5261 provides that limitation of motion of the knee will be assigned a noncompensable rating when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, other knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 VA's Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). VAOPGCPREC 23-97 held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). Also potentially applicable is Diagnostic Code 5258, which provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. Diagnostic Code 5259 provides for the assignment of a single 10 percent rating for removal of the semilunar cartilage, symptomatic. The Veteran filed correspondence on November 3, 2008 requesting an increased rating for her service-connected right knee disorder. The report of the Veteran's June 2008 VA examination indicates that the Veteran subjectively reported having intermittent locking of the right knee, along with suprapatellar tenderness that was chronic. There was an intermittent loud audible popping sound followed with sharp pain sensation, and constant dull pain described as similar to a dull toothache that was worse with ambulation. The course since onset was described as progressively worse. Treatment consistent of ibuprofen as a needed. There was a history of arthroscopic right knee surgery consisting of medial meniscal repair. The Veteran described having no deformity or incoordination, but having giving way, instability, pain, stiffness, and weakness. There were no episodes of dislocation or subluxation. Locking episodes did occur daily or more often. There were no effusions. There was redness. There were moderate flare-ups of the right knee condition, every two to three weeks, during which it was extremely difficult to flex the knee until tenderness resolved. There were no constitutional or incapacitating episodes of arthritis. On physical examination gait was normal, and there was no evidence of abnormal weight bearing. There was no loss of bone, or inflammatory arthritis. There was right knee tenderness, but no bumps consistent with Osgood-Schlatter's disease, no crepitation, no mass behind knee, no clicks or snaps, and no grinding, instability, or patellar abnormality. There was meniscus abnormality, though with no locking noted, effusion, dislocation, meniscus surgically absent, or evidence of a tear. McMurray's test was negative. Range of motion consisted of 0 to 140 degrees, with objective evidence of pain following repetitive motion, but no additional limitation after three repetitions of range of motion. There was no joint ankylosis. An recent x-ray study revealed no evidence of a fracture or dislocation. The soft tissue structures were unremarkable. No degenerative changes were recognized. The impression was of a negative examination. The diagnosis was limited flexion of the right knee. The effusion on usual occupation was indicated as "no significant effects." The VA examiner further commented that there was limited flexion of the right, with reported locking, weakness, tenderness and some restrictions on activity, with a mild to moderate severity. According to the examiner, though the x-ray did not show signs of degenerative disease, arthroscopic surgery usually led to some degree of degenerative disease. Records of VA outpatient treatment reflect that on a September 2010 VA internal medicine consult, the Veteran reported having had pain below the right knee cap, with clicking and popping, as well as locking in extension. The Veteran further reported giving way weakness with falls. The evaluating physician indicated positive for "pain/instability of right knee as above - denies other joint pain, swelling, redness or muscle pain." An x-ray study at that time indicated a possible minimal osteophyte in the right knee. Thereafter, a June 2011 orthopedic consult indicated: "Follow up to discuss MRI finding[s] which are normal except for abnormal signal in fibular collateral ligament. Exam of knee remains normal but for tenderness to palpation over the lateral aspect of the femur. No hamstring tightness. Patient symptomatic for years with little if any progression of symptoms. No specific treatment indicated." Upon VA examination of February 2011, the Veteran described intermittently taking Motrin for right knee pain relief, with good response. There was reported right knee giving way, instability, pain, stiffness, weakness, incoordination, daily locking episodes, inflammation, and flare-ups of joint disease that were severe. There were no episodes of dislocation or subluxation, or effusions. Objectively, there was right knee tenderness, though no bumps consistent with Osgood-Schlatter's disease, crepitation, mass behind knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus abnormality, abnormal tendons or bursae, or other knee abnormalities. Range of motion was from 0 to 120 degrees, with factual grimacing at 70 degrees. There was objective evidence of pain following repetitive motion, but no additional limitation after three repetitions of range of motion. There was no joint ankylosis. There was negative McMurray's, negative Lachman's and mild lateral joint line pain. Upon further VA examination in April 2013, the Veteran initially denied any recent injuries to her right knee. The Veteran indicated that her current right knee symptoms included pain, stiffness, swelling, and popping. She had problems going up stairs, and kneeling or squatting. Her right knee symptoms were being treated with acetaminophen four times daily. The Veteran stated that her treating physician had told her that no right knee surgery was needed at that time. She estimated that she could walk about half a block. It was indicated that flare-ups impacted the function of the knee and/or lower leg, as right knee flare-ups occurred about every week and usually lasted about one day. It was estimated that she lost an additional 15 percent of her right knee motion and function during flare-ups. She had more pain and more trouble walking. Range of motion was measured at from 0 to 40 degrees, including after three repetitions, with objective evidence of painful motion beginning at 0 degrees. There was functional loss of the right leg manifested by less movement than normal, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing and weight-bearing. There was tenderness or pain to palpation for the joint line or soft tissues of the knee. The VA examiner was unable to complete joint stability tests for the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. It was indicated that the Veteran had or had had a meniscus (semilunar cartilage) condition. As to severity and frequency of symptoms, it was noted there was a right meniscal tear, with frequent episodes of joint "locking," pain and effusion. The Veteran had undergone a meniscectomy, and there were now residual signs and symptoms, as had been described. It was further indicated that the Veteran had not had a total knee joint replacement. Further commented was that the right knee had mild diffuse swelling and the Veteran reported moderately severe tenderness to any palpation or motion. The Veteran held her right knee in a slightly flexed position and reported moderately severe right knee pain with almost any attempted examination of the right knee, including any motion. The Veteran had required stability testing of the right knee not be done due to pain, so these assessments were deferred. Due to the Veteran's expressed pain with attempted movement of the right knee, the examiner was unable to fully assess motor function of the knee, other than to observe that the Veteran was able to bear weight and ambulate slowly in the hallway with the use of cane. The examiner further found that no degenerative or traumatic arthritis was documented, and there was no x-ray evidence of patellar subluxation. The Veteran's right knee condition impacted his ability to work, through limiting mobility, kneeling, squatting and using stairs. Having comprehensively reviewed the foregoing, the Board finds sufficient grounds to increase the overall disability compensation scheme for the Veteran's service-connected right knee disorder, through an award of a separate rating of 20 percent indicative of compensation for right knee cartilaginous injury. Initially, regarding the existing basis of disability evaluation, the 10 percent rating assigned under the rating provisions for orthopedic limitation of motion, the Board finds that no immediate increase in rating is warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, the next higher available 20 percent evaluation requires limitation of leg flexion to 30 degrees; and under Diagnostic Code 5261, for a 20 percent evaluation there is required limitation of leg extension to 15 degrees. Alternatively, if not meeting the above requirements, the Veteran could demonstrate entitlement under Diagnostic Code 5261 to a separate 10 percent rating for limitation of leg extension to 10 degrees, for limitation of motion in both planes of motion for the knee. See again, VAOPGCPREC 9-04. On the VA Compensation and Pension examination of April 2013, which demonstrates the most pronounced limitation of motion findings of record, the Veteran had right knee range of motion of flexion to 40 degrees and extension to 0 degrees, including following repetitive motion testing to determine the extent, if any, of impact of functional loss due to pain and other relevant factors, in accordance with Deluca v. Brown, supra. See also 38 C.F.R. §§ 4.45, 4.59. These findings clearly do not fall within the ambit of what would objectively warrant an increased evaluation. Whereas also the Board notes the Veteran ostensibly had onset of pain on right knee flexion at just 0 degrees, this factor alone does not by necessity mean that right knee flexion when adjusted for functional loss should be deemed no greater than 0 degrees. There is no genuine indication that pain was such a limiting factor that for all intents and purposes, flexion was nonexistent. Indeed, even after repetitive testing the Veteran still had capacity for 40 degrees flexion, if somewhat painful. Also, on the two previous VA examinations, the Veteran had demonstrated a markedly greater capacity for range of motion than this. The Court has indicated under analogous circumstances that pain throughout a plane of motion does not automatically qualify for an increased rating, absent some concrete showing or suggestion that there has been quantifiable functional loss due to pain. See Mitchell v. Shinseki, 25 Vet. App. at 38 (pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system, but rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss). While the Veteran has stated that her flexion was limited from only 16 to 30 degrees, her statements are not found to be credible in this regard, as she demonstrated much greater motion on objective examination of the right knee. Accordingly, a higher evaluation is not available in this case premised upon limitation of motion. The Board has also considered the potential availability of any separate compensable rating pursuant to Diagnostic Code 5257 on the basis of "other" knee impairment, involving knee joint recurrent subluxation and/or lateral instability. On this subject, however, the Veteran where evaluated in this capacity has consistently demonstrated negative results on all diagnostic tests. Whereas VA outpatient records and examination findings indicate some reported instances of right knee instability, the competent objective medical findings overwhelmingly weigh against such a manifestation, or for that matter, other qualifying symptomatology that would fall under the purview of Diagnostic Code 5257. Therefore, a separate and/or higher rating is not warranted under DC 5257. However, the Board does ascertain a tenable basis upon which to assign a compensable evaluation due to cartilaginous injury involving the right knee, namely, given the recent finding of such on the April 2013 VA examination, accompanied by manifestation of episodes of joint pain, locking and effusion. Moreover, given that this is in all likelihood is a long-term condition, and that ongoing post-operative meniscal abnormalities have been noted intermittently over time (including on a remote, but still relevant September 2004 MRI study), the separate 20 percent rating for cartilaginous injury will be assigned effective from date of claim for increased evaluation. Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there is no basis to find that the Veteran's right knee disorder presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and she does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort, as well as cartilaginous injury, fairly accounts for nearly all of the Veteran's symptoms as presented, including from her descriptions upon VA examination and on other occasions. This specifically includes those "additional" symptoms of decreased mobility, problems with lifting, lack of stamina, decreased strength in the lower extremities, and pain -- most of these symptoms are covered in the Board's discussion of functional loss pursuant to DeLuca v. Brown. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is granting in part the Veteran's claim for increased rating for her right knee disorder, assigning a separate 20 percent rating on the basis of a symptomatic cartilaginous injury. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A higher evaluation than 10 percent for right knee, residuals of medial plica excision, with torn medial meniscus and arthritis, on the basis of limitation of motion, is denied. A separate 20 percent rating for dislocated right knee cartilage, post-operative, symptomatic, is granted, for the entire appellate period, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs