Citation Nr: 0006008 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-30 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for chondromalacia patella of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from October 1990 to May 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim for a rating in excess of 10 percent for service-connected chondromalacia patella of the right knee. The veteran timely appealed this determination to the Board. The case was remanded back to the RO in June 1999 for further development. After completion of the requested development, the RO continued to deny the claim, and the matter has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's service-connected chondromalacia patella of the right knee is productive of subjective complaints of pain, but full range of motion with some mild subluxation; this is indicative of no more than slight overall impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for chondromalacia patella of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for an increased rating for his service-connected chondromalacia patella of the right knee is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1(1999); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating musculoskeletal disabilities, the VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Historically, the veteran began experiencing pain in his right knee during service. He underwent arthroscopic surgery of the right knee. In January 1993, a Navy Physical Evaluation Board found the veteran unfit for service as a result of his right knee disability, and he was discharged from service in May 1993. In April 1995, service connection was established for chondromalacia patella of the right knee, and a 10 percent evaluation was assigned to that disability. The RO's determination was based on a February 1994 VA examination that revealed flexion of the right knee to 100 degrees and extension to 0 degrees. No swelling or deformity of the right knee was noted at that time. A June 1997 RO rating decision confirmed and continued the 10 percent evaluation. The veteran timely appealed that decision. The veteran's complaints of symptomatology regarding the right knee include pain and crepitus, as noted on a January 1995 private treatment record, and an April 1997 VA outpatient treatment report. Charles P. Capito, M.D. examined the veteran's right knee in January 1995. At that time, the veteran complained of pain in the right knee. The veteran indicated that he frequently rides a bicycle and plays basketball. Physical examination of the right knee revealed crepitation to range of motion under the patella, tenderness on the medial facet of the patella, tenderness to patella compression and decreased muscle growth of the right quadriceps versus the left. The diagnosis was chondromalacia patella. An April 1997 outpatient treatment report shows that the veteran sought treatment for complaints of right knee pain. The examiner noted patellofemoral crepitus on the right. The knee appeared stable. The veteran was afforded a VA examination in September 1998. At that time, the veteran reported a sharp and throbbing pain in his right knee. The veteran reported that pain is dramatically increased with ascending stairs and that this activity also causes subluxation. The veteran indicated that he can no longer play basketball or ride a bicycle, and that he is unable to walk for more than 10 minutes or stand for more than 10 to 15 minutes. The veteran reported that he occasionally uses a knee brace; applies ice and takes Advil for the pain when needed. Physical examination revealed that the veteran was able to walk the length of the hallway to the examination room, approximately 150 feet, without use of assistive devices or alteration in gait. There was no edema, tenderness to palpation, erythema, or asymmetry noted in the knees bilaterally. There were no visible scars bilaterally. The veteran had significant/increased mobility of the patella on the right. Flexion was possible bilaterally to 135 degrees, with pain at the farthest degrees of flexion. There was no crepitus palpable or audible with flexion and extension. There was no lateral, medial, anterior or posterior instability noted bilaterally in the knees. Deep tendon reflex on the right was not elicited. The veteran was able to demonstrated coordination testing of the lower extremities, specifically heel-to-shin maneuver. Ambulation, when viewed from anterior and posterior revealed no abnormality and the veteran was able to demonstrate tandem gait. Radiographically, the knees were normal with the exception of two metallic foreign bodies in the soft tissue anterior and lateral to the distal shaft of the left femur. In the veteran's September 1997 substantive appeal, he indicated that he had received treatment for his right knee disability from the Tampa, Florida VA Medical Center. As such, in October 1997, the Board remanded the case for the RO to obtain any such treatment records. Pursuant to the remand, the RO requested all treatment records pertaining to the veteran's right knee disability from the Tampa VA Medical Center. In response, the Tampa VA Medical Center sent one outpatient record dated April 1997 and noted that there were no other documents that satisfied the request. In addition, it was noted that the entire one-page medical record had been previously sent to the RO. In the October 1999 supplemental statement of the case, the RO indicated that, "In reviewing the claims folder, it was found that the report was previously considered in a local rating board decision of August 1998 which incorrectly stated that the report was from the VA Medical Center in Pittsburgh, PA. This fact was missed by both the local rater and Board of Veterans' Appeals member responsible for the remand." As noted above, the Board has considered the aforementioned April 1997 medical record. The veteran has alleged that his right knee disability should be rated higher than 10 percent because he believes that his right knee pain is not adequately compensated by the currently assigned 10 percent rating. The RO has evaluated the veteran's right knee disability under Diagnostic Code 5257. This code provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee. If these symptoms cause moderate impairment in the knee, then a 20 percent rating is assigned, whereas a 30 percent rating is assigned for severe impairment. The Board finds that the 10 percent evaluation assigned for the veteran's right knee disability is appropriate. The most recent September 1998 VA examination essentially disclosed that the veteran's right knee disability was manifested by subjective complaints of pain, but there was no objective evidence of limitation of motion, crepitus, tenderness, swelling or instability. While Dr. Capito's January 1995 medical report and the September 1997 outpatient treatment report revealed crepitus of the right knee, this has not been shown to result in any functional impairment. Indeed, Dr. Capito also noted that the veteran was able to play basketball and ride a bicycle at that time; the veteran also is employed at a job that requires extended periods of standing. Although the veteran complains that his knee pain has increased in severity, the objective medical evidence, by contrast, appears to show some improvement in the objective manifestations of the veteran's right knee disability. For example, the veteran's limitation of motion of the right knee was slight according to the February 1994 examination, however the veteran's range of motion of his right knee is currently within normal limits according to the September 1998 VA examination report. These findings, when considered along with the veteran's complaints of pain, establish that the service-connected right knee disability cannot be characterized as demonstrating more than slight overall impairment under Diagnostic Code 5257; at least moderate overall disability is simply not shown. Furthermore, as no current limitation of motion is objectively shown, a rating higher than the currently assigned 10 percent evaluation is not warranted under either of the diagnostic codes pertaining to limitation of motion of the knee and leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (1999). Even if the functional limitations described by the veteran due to pain could be assessed in terms of degrees of lost motion, there is no medical indication of record that such impairment would result in functional loss comparable to flexion limited to 45 degrees or less, or extension limited to 10 degrees or more (the criteria for a compensable evaluation under Diagnostic Codes 5260 and 5261 respectively). Finally, in the absence of evidence of, or of disability comparable to, ankylosis of the knee, dislocation of the cartilage, or impairment of the tibia and fibula, there is no basis for assigning a higher evaluation under any other potentially applicable diagnostic code pursuant to which knee disability is evaluated. See Diagnostic Codes 5256, 5258, and 5262. As such, there is no basis upon which to grant an increased rating for the veteran's chondromalacia patella of the right knee. On the basis of the foregoing, the Board must conclude that the criteria for an evaluation in excess of the currently assigned 10 percent rating under Diagnostic Code 5257 for the veteran's service-connected chondromalacia patella of the right knee are not met. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The above determination is based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that the disability currently under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings). Moreover, the condition is not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for chondromalacia patella of the right knee is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals