BVA9507176 DOCKET NO. 93-13 462 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE An increased (compensable) disability rating for chondromalacia patella, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Army from October 1967 to October 1969. In a November 1969 rating decision, the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota (VARO) granted the appellant service connection for chondromalacia, both patellae. A 10 percent disability rating was assigned. In an October 1974 rating decision, chondromalacia patella of the right knee was assigned a separate disability rating of 10 percent. The assigned disability rating was decreased to noncompensably disabling, effective from April 1, 1977, in a December 1976 VARO rating decision. In March 1991, the appellant filed a claim for an increased disability rating for his service-connected right knee disorder. This appeal arose from a July 1991 VARO rating decision which denied the appellant's claim. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected right knee disorder is of sufficient severity as to warrant a compensable disability rating. His representative, in an October 1993 informal presentation, has urged the Board to consider the appellant's repeated complaints of pain and functional loss, citing 38 C.F.R. §§ 4.10 and 4.40 (1994). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim and that an increased disability rating for the appellant's service-connected right knee disability should be denied. FINDING OF FACT The appellant's service-connected chondromalacia patella of the right knee is currently manifested by subjective complaints, with no objective evidence of knee pathology. CONCLUSION OF LAW The appellant's service-connected chondromalacia patella of the right knee is noncompensably disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking an increased disability rating for his service-connected right knee disorder. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, it is believed that this case has been adequately developed for appellate purposes by VARO and that the Board may therefore proceed to a disposition on the merits without the necessity of a remand. In evaluating the appellant's request for an increased disability rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is the Board's responsibility to weigh the evidence of record. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1994). In the interest of clarity, the Board will first briefly review the appellant's relevant medical history. 38 C.F.R. §§ 4.1, 4.41 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The issue presented on this appeal will then be discussed. Medical history The appellant's service medical records reveal that the appellant injured his right knee in December 1968 while jumping off a truck. Thereafter, he complained of right knee pain and instability. X-rays were negative. Chondromalacia patella was diagnosed in August 1969. The appellant was hospitalized at a VA facility in December 1969. The appellant reported pain, swelling and locking of his knee. During his hospitalization, no knee pathology could be confirmed. A VA examination of the appellant was completed in September 1970. X-rays of the right knee were negative, as was physical examination of the knee. The appellant was hospitalized in April and May 1973 due to complaints of painful and swollen knees. During his admission, he showed a great deal of anxiety with many psychosomatic complaints, none of which could be substantiated on physical examination. An orthopedic examination produced no diagnosis of orthopedic disease. Discharge diagnoses included anxiety with depressive neurosis; chondromalacia patella, not confirmed on this admission. Thereafter, the appellant continued to voice complaints concerning pain and locking of his right knee. No knee pathology could be verified by means of X-ray or physical examination. The medical record also reflects a long history of personal problems, alcoholism and psychiatric illness. The appellant was hospitalized at a VA facility in February and March 1988 due to depression. During the hospitalization, "he also reported difficulty with his right knee since a fall off a truck in 1968. This was recounted in a rather manipulative fashion....[He reported] vague tenderness about the right knee." Discharge diagnoses were dysthymic personality and history of alcoholism. No orthopedic diagnosis was made. The appellant was hospitalized at a VA facility for detoxification in September and October 1989. He voiced no complaints concerning his knees, and no knee pathology was identified on physical examination. On March 24, 1991, the appellant sought medical treatment, stating that his knee had given out while he was lifting a package. Physical examination revealed no pathology of the knee. The next day, March 25, 1991, the appellant hand delivered this claim for an increased disability rating. The appellant thereafter complained of pain and stiffness of his right knee. VA Orthopedic Clinic records dated April 1991 indicated that the knee had full range of motion, with no giving way. An orthopedic consultation in October 1991 identified no right knee pathology. The appellant was given physical therapy. A December 1991 treatment note of the Chief of the Rehabilitation Medicine Service noted that the appellant complained of tenderness over the medial area of the right knee. "McMurray's does not produce any click or crepitus over this area, however. He has no swelling and otherwise physical examination is about the same as before." In January 1992, the Chief noted "he has some pain in the superior patella, [but] moving the patella really didn't cause any particular problem either superiorally, inferiorally or medially. There is no effusion, no instability, no definite sign of cartilage injury." Flexion and extension of the right knee were both within normal limits. A VA orthopedic examination of the appellant was completed in April 1992. He complained of pain and instability of the right knee. X-rays of the appellant's right knee were entirely normal. On examination, there was no tenderness on palpation. There was no effusion. There was mild crepitus bilaterally, but this was not severe, according to the examiner. Ranges of motion were full. All testing was negative. The diagnosis was "increase in pain symptoms, previously diagnosed as chondromalacia." Analysis The schedular criteria call for a 10 percent disability rating for slight impairment of a knee. A 20 percent disability rating is warranted for moderate impairment, and a 30 percent disability rating is assigned for severe impairment. A zero percent evaluation is assigned when the schedular requirements for a compensable evaluation are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257 (1994). The words "slight", "moderate" and "severe" 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 (1994). It should also be noted that use of terminology such as "mild" 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 (1994). The Board further notes that, in assigning disability ratings, the provisions of 38 C.F.R. § 4.40 (1994) concerning pain and functional loss are taken into consideration. After having carefully reviewed all of the relevant evidence, the Board is of the opinion that the noncompensable disability rating is proper in this case. The appellant's medical history, described above, is remarkable in that no objective knee pathology has ever been described by any examiner, despite many examinations and hospitalizations. If the requirements for a compensable disability rating are not met, a zero percent disability rating is assigned. 38 C.F.R. § 4.31 (1994). The Board cannot help but be aware of the appellant's repeated contentions of knee pain and instability. The provisions of 38 C.F.R. § 4.40 (1994) have therefore been carefully considered. In the opinion of the Board, that section, taken in the context of the rest of the VA Schedule for Rating Disabilities, does not automatically authorize the assignment of a compensable disability rating merely because the appellant alleges that he has knee pain and functional impairment. Rather, as noted above, the appellant's entire medical history and all of the evidence of record must be taken into consideration to the end that this decision is "equitable and just". 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.41 (1994). In this case, there is evidence of manipulative behavior on the part of the appellant, as well as somatic complaints. Moreover, the Board can find no medical evidence which links the appellant's reported pain and other alleged symptomatology to his service-connected right knee chondromalacia patella, which was not diagnosed during the most recent VA orthopedic examination, in April 1992. Tedeschi v. Brown, U.S. Vet.App. No. 93-1232, slip op. at 4-5 ((March 8, 1995). Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). ORDER An increased disability rating for chondromalacia patella, right knee, is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.