Citation Nr: 1807342 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-29 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) right knee. 2. Entitlement to a rating in excess of 10 percent for DJD, left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and her aunt ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2017 the Veteran and her aunt appeared at the RO and testified at a Board videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence for which she provided a written waiver of RO review under 38 U.S.C. § 20.1304 (2012). In March 2017, the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development. During the pendency of the appeal, in a September 2017 rating decision, the AOJ granted entitlement to special monthly compensation (SMC) based on the need for aid and attendance. As this was a complete grant of the benefit sought, the issue is no longer before the Board. The September 2017 Rating Decision also granted service connection for right knee (limitation of extension) joint osteoarthritis associated with DJD of the right knee, right knee scar status-post knee arthroscopy, and left knee scar status-post arthroscopy. To date, the Veteran has not indicated disagreement with this rating decision. Accordingly, these issues are not currently before the Board. See 38 C.F.R. § 20.302 (2017). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's DJD right knee is characterized by limitation of flexion limited to no less than 70 degrees. 2. Throughout the appeal period, the Veteran's DJD left knee is characterized by x-ray evidence of arthritis with limitation of flexion limited to no less than 50 degrees, and limitation of extension limited to 0 degrees. CONCLUSIONS OF LAW 1. The criteria for a higher rating for DJD right knee, rated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107(b) ( 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5010-5260 (2017). 2. The criteria for a higher rating for DJD left knee, rated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107(b) ( 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3 4.7, 4.10, 4.21, 4.71a, Diagnostic Code 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating The Veteran claim entitlement to ratings in excess of 10 percent for DJD of the right and left knee based on worsening of symptoms. See November 2017 Appellate Brief. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's DJD of the right knee is currently rated 10 percent disabling under Diagnostic Code 5010-5260 (2017). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran's DJD of the left knee is currently rated 10 percent disabling under Diagnostic Code 5003. Diagnostic Code 5010 provides that arthritis due to trauma substantiated by x-rays findings should be rated as degenerative-arthritis (Diagnostic Code 5003). Under Diagnostic Code 5003, a rating will be based either on limitation of motion of the affected joint under the appropriate diagnostic code or, if only a noncompensable limitation of motion is found, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Normal range of motion of the knee is zero to 140 degrees. 38 C.F.R. § 4.71a , Plate II. Under Diagnostic Code 5260 based on limitation of flexion of the leg, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Additionally, Diagnostic Code 5261 dictates that limitation of extension of the knee to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5261. If the criteria for a compensable rating under both Diagnostic Codes 5260 and Diagnostic Code 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). Similarly, a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). This is the case here, the Veteran has been granted a separate rating for right knee limitation of extension under Diagnostic Code 5003-5261. See September 2017 Rating Decision. As appeal of the rating assigned to this disability is not currently before the Board, further discussion is unwarranted. Diagnostic Code 5256 provides criteria for evaluating ankyloses of the knee. 38 C.F.R. § 4.71a. Favorable ankyloses in full extension or in slight flexion between zero and 10 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent evaluation. Id. Ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent evaluation. Id. Extremely unfavorable ankyloses in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Additionally, a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5010 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Knee instability is evaluated under Diagnostic Code 5257. 38 C.F.R. § 4.71a. A 10 percent evaluation is warranted for slight recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent evaluation is warranted for moderate recurrent subluxation or lateral instability. Id. A 30 percent evaluation, which is the maximum available under this diagnostic code, is warranted for severe subluxation or lateral instability. Id. The Board notes that the terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Since the grant of service connection for DJD of the right knee in November 1988, the Veteran has been assigned a 10 percent disability rating under Diagnostic Code 5010-5260. Since the grant of service connection for DJD of the left knee in September 1996, she has been assigned a 10 percent disability rating under Diagnostic Code 5003. These ratings have been in place for more than 20 years and are therefore protected. See 38 C.F.R. § 3.951 (2017). The Veteran filed his claim for increased evaluation on February 3, 2009; the Board has therefore considered whether an increase is warranted to include up to one year prior to the date of claim. See 38 C.F.R. § 3.400(o) (2017). A. Factual Background August 2008 x-rays of the right knee showed DJD of the right knee with osteophytes, unchanged since last examination. May 2008 magnetic resonance imaging (MRI) tests of the knee showed moderate joint effusion with moderate loss of articular cartilage over the lateral patellar facet. No meniscal tear or ligamentous injury seen. The Board notes that the MRI does not specify which knee it pertains to. The Veteran was afforded a VA joint examination in March 2009. The Veteran reported constant bilateral knee pain aggravated with walking, climbing stairs, and bending. She denied flare-ups. She reported the frequent use of knee braces. Symptoms of bilateral knee pain, stiffness, weakness, daily subluxation, and weekly locking were noted. There was evidence of tenderness and crepitation, but no instability. Mild right knee effusion was noted. On range of motion, right knee flexion was limited to 90 degrees and extension limited to 0 degrees. Left knee flexion was limited to 100 degrees and extension limited to 0 degrees. There was objective evidence of pain with active motion and following repetitive motion on both sides. There was no evidence of ankylosis. A diagnosis DJD of the bilateral knees was provided. The examiner opined there was no effect on occupation. September 2009 magnetic resonance imaging (MRI) of the right knee showed a right lateral meniscus tear. October 2009 VA treatment records document complaints of debilitating bilateral knee pain treated with injections. Impressions of significant chondromalacia patella bilateral knees, right more than left; right meniscus tear; and chronic bilateral knee pain were provided. In November 2009, the Veteran underwent right knee arthroscopy procedure at a VA facility. In January 2010, two months status-post, she complained of extreme pain and swelling in the right knee. Orthopedic notes documented physical therapy treatment. On physical examination, right knee revealed decreased range of motion with flexion limited to 90 degrees. There was moderate effusion and tenderness to palpation, but overall, the knee was stable with negative anterior and posterior drawers. An assessment of right knee grade 4 chondromalacia was provided. Steroid injections were recommended. July 2010 VA treatment records contain a physical examination showing right knee flexion limited to 95 degrees and extension limited to 0 degrees. An impression of end stage tricompartmental osteoarthritis of the right knee was provided. October 2010 private MRI right knee showed significant osteochondral disease and moderate joint effusion. MRI left knee showed significant joint effusion, asymmetric fluid collection, and significant osteoarthritis disease with early condylar spurring. In a November 2010 letter, a VA physician stated that the Veteran was unable to return to work due to severe constant pain and the inability to walk from her house to the car without pain. The Veteran was afforded a VA general medical examination in April 2011. She complained of joint pain. On musculoskeletal exam, there was swelling in the right knee with bony joint enlargement, and bilateral tenderness. There was evidence of crepitus, but no ankylosis. Range of motion right knee showed flexion limited to 80 degrees and normal extension limited to 0 degrees. Left knee flexion was limited to 50 degrees with normal extension limited to 0 degrees. Objective evidence of bilateral pain was noted. The examiner opined that the Veteran's low back and neck conditions impact his employability but that the Veteran could still perform sedentary work. In June 2013 VA treatment records, a physician noted that due to the Veteran's multiple comorbidities, he doubted that surgical knee replacements would be successful. October 2014 VA treatment records document the Veteran's report that she needs bilateral knee replacement, but she has to wait until she is 55 years old. A July 2015 VA orthopedic surgeon evaluation noted that the Veteran's age precluded total knee replacement at this time. Weight loss and steroid treatment was recommended. February 2016 MRI of the right knee showed joint effusion with soft tissue swelling, degenerative arthrosis and chondromalacia, and possible treat of medical meniscus. The Veteran was afforded a VA knee and lower leg examination in August 2016. Based on imaging studies, a diagnosis of degenerative arthritis located in both knees, was provided. The Veteran reported constant bilateral knee pain and ambulation limited to transfers due to knee pain and a cervical spine surgery. She reported intermittent swelling and that she does not walk more than a few steps. The examiner noted that x-rays showed moderate DJD of both knees. She denied flare-ups. On range of motion, right knee flexion was limited to 80 degrees and extension limited to 5 degrees. Left knee flexion was limited to 85 degrees and extension limited to 0 degrees. Due to abnormal range of motion, she was unable to bend both knees. She also had pain on flexion and extension with both knees. There was evidence of diffuse non-localized tenderness, but no pain with weight bearing in both knees. For both knees, she was able to perform repetitive-use testing with at least three repetitions and no additional loss of function. As the Veteran was not immediately observed after repetitive use over time, it was noted that the examination was neither medically consistent nor inconsistent with her reports of functional loss after repetitive use. The examiner indicated that the opinion on respective use relied on the Veteran's subjective reports. Muscle strength for each knee was rated 4 on a 5 point scale, indicating active movement against some resistance. The examiner noted that there was evidence of a reduction in muscle strength, but the examiner could not state with certainty that such reduction was due to the Veteran's knee conditions. There was no evidence of atrophy, ankylosis, recurrent subluxation, or instability. The Veteran had a right knee scar measuring 16 centimeters (cm) length by 0.5 cm width. Constant use of a wheelchair, not attributed to her knee conditions, was noted. As for functional impact, the examiner opined that due to the Veteran's knee conditions, she could only perform sedentary work. In a December 2016 letter, a private physician recommended that the Veteran have bilateral knee arthroplasty subject to medical clearance due to other medical conditions. At the January 2017 hearing, the Veteran reported that she was currently taking a narcotic pain reliever because of the severity of her knee pain; she described the severity of the pain as an eight and a half in both knees. She also reported that she experiences increased swelling in the knees as the day progresses. The Veteran further reported that her knees were unstable even with the use of braces. It was noted that she used a wheelchair after a previous heart procedure, but she maintained use of the wheelchair was partially due to her bilateral knee disorder. She reported that transferring from the wheelchair to the bathroom caused increased pain and swelling. The Veteran testified that she had been told by doctors that she needs to have both knees replaced. In fact, she stated that doctors have suggested knee replaces as the only course of treatment. The Veteran's aunt testified that because of the Veteran's knee conditions, she requires constant help and is unable to care for herself. The Veteran's aunt noted that the Veteran must be carried up and down stairs and needs help getting in and out the shower. The Veteran was afforded a VA knee and lower leg examination in May 2017. Based on imaging studies, a diagnosis of knee joint osteoarthritis, both knees, was provided. She reported functional loss that prevents her from performing activities without assistance, but she denied flare-ups. On range of motion, right knee flexion was limited to 70 degrees, and extension limited to 10 degrees. For the left knee, flexion was limited to 70 degrees and extension limited to 0 degrees. For both knees, abnormal range of motion caused problems walking and moderate pain on flexion and extension was noted. The examiner indicated that passive and active range of motion was the same as to each knee. There was also no evidence of pain on non-weight bearing for either knee but there was pain on weight bearing as to each knee. For both knees, she was able to perform repetitive-use testing with at least three repetitions and no additional loss of function. As the Veteran was not immediately observed after repetitive use over time, it was noted that the examination was neither medically consistent nor inconsistent with her reports of functional loss after repetitive use. It was noted that pain, and fatigue caused functional loss in both knees, range of motion was not provided because she was not observed with repetitive use over time. Additional symptoms contributing to both knees were less movement than normal, weakened movement, swelling, disturbance of locomotion, and interference with sitting and standing. Muscle strength for each knee was rated 4 on a 5 point scale, indicating active movement against some resistance. There was no evidence of muscle atrophy, ankylosis, joint instability, or shin splints. Past surgical procedures in the right and left knees were noted. The Veteran had a right knee scar measuring 16 cm length by 0.5 cm width, and three left knee scars measuring 1 cm width by 1 cm length. As for assistive devices, the examination acknowledged constant use of a wheelchair and regular use of braces. As for functional impact, the examiner opined that knee pain prevents the Veteran from walking, standing, sleeping, and interferes with use of a toilet and grooming. The examiner concluded that the Veteran's knee symptoms had worsened but there was no change in diagnosis. A. DJD Right Knee Based on the above, the preponderance of the evidence is against a finding that a rating in excess of 10 percent under Diagnostic Code 5010-5260 is warranted for DJD of the right knee. Under the applicable diagnostic code, a higher rating requires flexion limited to 30 degrees. The Veteran's DJD right knee disability has been characterized by pain and, at worst, limitation of flexion limited to 70 degrees. See May 2017 VA Examination report. While pain and tenderness were present, they did not result in additional functional loss. See August 2016 and May 2017 VA Examination Reports. These findings are consistent with a 10 percent rating under Diagnostic Code 5260 for limitation of extension. See 38 C.F.R. § 4.71. For extension, as noted above, the Veteran has been granted a separate rating for right knee limitation of extension under Diagnostic Code 5003-5261. See September 2017 Rating Decision. As this issue is not currently before the Board, further discussion of extension is unwarranted. In particular, the Veteran has significant time remaining to file and perfect an appeal of that rating or effective date to the Board. For the Board to act now would be inappropriate given the procedural posture of that September 2017 award. The Board also notes she has already been awarded a temporary total evaluation (100 percent rating) for her November 2009 hospitalization. See July 2010 Rating Decision. As the Veteran is in receipt of a compensable rating based on limitation of motion, a higher rating is not available for degenerative arthritis, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003. B. DJD Left Knee The Veteran's DJD left knee is currently rated 10 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5003 (2017). Based on the above, the preponderance of the evidence is against a finding that a rating in excess of 10 percent under Diagnostic Code 5003 is warranted for DJD of the left knee. Under the applicable diagnostic code, a higher rating requires occasional incapacitating exacerbations. Here, although arthritis has been confirmed by x-rays, there is no indication of occasional incapacitating exacerbations. See October 2010MRI. On examination, the Veteran denied flare-ups. See March 2009, August 2016, and May 2017 VA Examination Reports. The Veteran's DJD left knee symptoms do not warrant a compensable rating based on limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. A compensable degree of limitation of motion requires flexion limited to no more than 45 degrees or extension limited to no less than 10 degrees. Id. Here, the Veteran's DJD left knee disability has been characterized by pain and, at worst, limitation of flexion limited to 50 degrees and extension limited to 0 degrees. See March 2009, April 2011, August 2016, and May 2017 VA Examination Reports. Notably, left knee extension has been normal throughout the appeal period. See 38 C.F.R. § 4.71a, Plate II. As such, a compensable rating is not warranted based on limitation of motion and the assignment of the 10 percent rating under Diagnostic Code 5003 is appropriate for the entire appeals period. Turning to the question of stability of both knees, the Veteran testified that her knees feel unstable when she moves and that she uses a wheelchair partially due to her knee disabilities. She reported that total knee replacement, for both knees, was recommended. VA treatment records note that the Veteran's age precludes total knee replacement at this time. See October 2014 and July 2015 VA Treatment Records. Thus, conservative treatment such as weight loss and steroid treatment has been recommended. Id. Nevertheless, stability testing of both knees has consistently yielded that the knees are stable. See March 2009, August 2016, and May 2017 VA Examination Reports. The Board finds that the Veteran's subjective complaints are not akin to the instability contemplated by the rating criteria. Thus, a separate rating for instability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Similarly, there has been no evidence of ankylosis warranting a higher rating under Diagnostic Code 5256. See March 2009, April 2011, August 2016 VA Examination Reports. As for scars, the Veteran has been separately granted service connection for right and left knee scars each evaluated as noncompensable. See September 2017 Rating Decision. As appeal of the ratings assigned to these disabilities is not currently before the Board, further discussion is unwarranted. The Board is aware that the scars are part of his knee disabilities. There is no argument of record disputing the ratings assigned by the AOJ. If the Veteran disagrees with those ratings or the date of the ratings she has until one year after notification of the September 2017 Rating Decision to initiate an appeal. Under these circumstances it would be premature to now address the propriety of those ratings. In conclusion, the Board finds that there is no factually ascertainable date on which there was an increase in symptomatology, warranting a rating in excess of 10 percent for the Veteran's DJD of the right and left knee disabilities. See 38 C.F.R. § 3.400(o). C. Other Considerations The Board also finds that the schedular rating criteria adequately describe the Veteran's symptoms and disabilities. This means that the Veteran's disabilities do not manifest with an exceptional disability picture. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for a higher rating on an extraschedular basis for his service-connected disabilities. 38 C.F.R. § 3.321(b)(1). Here, the symptoms that the Veteran has reported are all contemplated by the rating schedule. Her symptoms include pain and limitation of motion. These are not unusual or exceptional symptoms, but rather are contemplated by the rating schedule. During the appeal period, with the exception of the November 2009 right knee surgical procedure for which she was granted temporary total evaluation, neither disability has caused her to be hospitalized. Further she does not allege that DJD of the right and left knee, solely, interfere with her ability to work. On the contrary, in an August 2015 rating decision, the RO based her entitlement to TDIU, on other service-connected disabilities. See 38 C.F.R. § 3.321(b)(1); see also 38 C.F.R. § 4.16. As such the regular schedular criteria provide for adequate compensation. For these reasons, the Board declines to remand the claims just discussed for referral for extraschedular consideration. Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to her service-connected knee disabilities. Therefore no further discussion of a TDIU is necessary. For the foregoing reasons, the preponderance of the evidence is against the assignment of higher ratings than those currently assigned for the Veteran's DJD of the right and left knee disabilities for all periods on appeal, and the appeals as to higher ratings for those disabilities must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for DJD right knee is denied. A rating in excess of 10 percent for DJD left knee is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs