Citation Nr: 0003504 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-17 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to a disability rating higher than 10 percent for residuals of anterior cruciate ligament reconstruction with chondromalacia, right knee, on appeal from the initial grant of service connection. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from August 1991 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, George, which, in pertinent part, denied the above claims. In September 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). He was accompanied by a veterans' service representative at that hearing. At the hearing, the veteran submitted additional evidence. As he has waived the RO's consideration of this evidence, the case need not be remanded to the RO for consideration and the issuance of a supplemental statement of the case. See 38 C.F.R. § 20.1304(c) (1999). The June 1998 rating decision also denied service connection for a left shoulder condition, and the veteran perfected an appeal as to this issue. When the veteran filed his claims for compensation in November 1997, he did not specify exactly which shoulder he was claiming. The RO adjudicated the left shoulder, and the veteran did not indicate in his notice of disagreement or substantive appeal that this was incorrect. However, he stated at his hearing in September 1999 that he was claiming benefits for a right shoulder disorder. He clearly withdrew the left shoulder issue from his appeal at that time. An appeal may be withdrawn in writing at any time before the Board renders a decision. See 38 C.F.R. § 20.204 (1999). The veteran's withdrawal of this issue from appeal was reduced to writing when the hearing was transcribed. Cf. Tomlin v. Brown, 5 Vet. App. 355 (1993) (hearing testimony before the RO, when reduced to writing, can constitute a notice of disagreement). Once the veteran withdrew this issue from his appeal, there remained no allegations of errors of fact or law for appellate consideration, and the left shoulder issue is, therefore, not before the Board. The issue of entitlement to service connection for a right shoulder condition has not been adjudicated by the RO, and it is not inextricably intertwined with the other issues before the Board. See Parker v. Brown, 7 Vet. App. 116 (1994) (a claim is intertwined only if the RO would have to reexamine the merits of any denied claim which is pending on appeal before the Board under the pertinent law and regulations specifically applicable thereto). Therefore, this issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran does not currently have a hearing loss disability as defined by applicable law, and this claim for service connection is not plausible. 2. The veteran's claim for a higher rating for his right knee condition is plausible, and the RO has obtained sufficient evidence for correct disposition of this claim. 3. There is no medical evidence showing that the veteran has any laxity or subluxation of the right knee, nor any functional impairment, and any instability that he experiences is no more than slight. 4. Although the veteran has degenerative arthritis of the right knee, he does not have any resulting limitation of motion. CONCLUSIONS OF LAW 1. The claim for service connection for hearing loss is not well grounded, and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim for a higher disability rating for his right knee condition is well grounded, and VA has satisfied its duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 3. The criteria for a disability rating higher than 10 percent for residuals of anterior cruciate ligament reconstruction with chondromalacia, right knee, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, and 4.71a, Diagnostic Codes 5003, 5010, and 5257 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence of record, which consists of service medical records, reports of VA examinations conducted in 1998, a report from Georgia Bone & Joint dated in 1999, and the veteran's contentions, including those raised at a personal hearing in 1999. The evidence pertinent to each issue is discussed below. A. Service connection for hearing loss Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, a well-grounded claim is a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110 and 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (1999). Service connection for sensorineural hearing loss may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307 and 3.309 (1999); see Under Secretary for Health letter (October 4, 1995) (It is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability.) With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385 (1999). ("[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent."). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) has held that 38 C.F.R. § 3.385 did not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation did not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. § 1110 (West 1991); C.F.R. §§ 3.303 and 3.304 (1999); Hensley, 5 Vet. App. at 159-60. The veteran is not entitled to direct or presumptive service connection for hearing loss because the medical evidence does not show that he has a current disability. Although a diagnosis of high frequency hearing loss was shown in the service medical records, none of the audiograms conducted either during the veteran's period of military service or upon VA examination in 1998 demonstrated that he had met the requirements for a hearing loss disability. See 38 C.F.R. § 3.385 (1999). None of the auditory thresholds between 500 and 4000 Hertz have ever been 26 decibels or higher. All inservice audiograms, as well as the 1998 VA audiometric examination, showed auditory thresholds from zero to 15 decibels between 500 and 4000 Hertz. Such findings are normal. See 38 C.F.R. § 3.385 (1999); see also Hensley, 5 Vet. App. at 157 (threshold for normal hearing is from zero to 20 decibels). His speech recognition score on the Maryland CNC Test in 1998 was 100 percent bilaterally. The inservice diagnosis of high frequency hearing loss appears to have been rendered based on auditory thresholds for 6000 Hertz, since those findings were circled on the 1997 report showing the diagnosis. However, any findings for 6000 Hertz are not recognized by VA regulations as indicative of decreased hearing acuity. Therefore, the veteran does not have a current hearing loss disability according to VA regulations. Since there is no competent medical evidence of a current disability, the claim for service connection for hearing loss is not well grounded. The veteran's contention that he currently has hearing loss is not competent evidence. He cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own unqualified opinion. There is no indication that the veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without competent medical evidence establishing that he has hearing loss, his claim for service connection is not well grounded. Until the veteran establishes a well-grounded claim, VA has no duty to assist him in developing facts pertinent to the claim, including providing him additional medical examinations at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well grounded). When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). VA has no outstanding duty in this case to inform the veteran of the necessity to submit certain evidence to complete his application for VA benefits. See 38 U.S.C.A. § 5103(a) (West 1991). There is no indication of any medical records that might well ground this claim. The veteran testified that he has not undergone any hearing evaluations since his separation from service. The presentation of a well-grounded claim is a threshold issue. Therefore, since the veteran has failed to present competent medical evidence that his claim for service connection for hearing loss is plausible, the claim must be denied as not well grounded. Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of this claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. B. Higher rating for right knee disorder The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran perfected his appeal as to the initial grant of service connection and original assignment of a disability rating for his right knee disorder. Therefore, his claim continues to be well grounded as long as the rating schedule provides a higher rating for the service-connected condition. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a well-grounded claim for an increase, but the medical evidence is not adequate for rating purposes, an examination will be authorized. 38 C.F.R. § 3.326(a) (1999). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the RO provided the veteran an appropriate VA examination in 1998. Although the veteran argues that the examination was inadequate, it did provide sufficient evidence to rate the service-connected disability properly. The VA examination report provides information as to range of motion, instability/laxity, and test results for functional abilities. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected right knee condition since he was examined, since he testified that he has not received any outpatient treatment since his separation from service. Accordingly, in the circumstances of this case, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). The veteran has disagreed with the original disability rating assigned for his right knee disorder. There is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate Statement of the Case (SOC). Id. at 126 and 132. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. at 126. With an increased rating claim, "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. Fenderson, 12 Vet. App. at 132. The SOC provided to the veteran identified the issue on appeal as evaluation of the service-connected right knee disorder. Throughout the course of this appeal, the RO has evaluated all the evidence of record in determining the proper evaluation for the veteran's service-connected disability. The June 1998 rating decision that granted service connection for this condition considered all the evidence of record in assigning the original disability rating. The RO did not limit its consideration to only the recent medical evidence of record, and did not therefore violate the principle of Fenderson. The veteran has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original rating properly considered based on all the evidence of record. The RO complied with the substantive tenets of Fenderson in its adjudication of the veteran's claim. Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). Because this appeal is from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. The Board will consider all evidence in determining the appropriate evaluation for the veteran's service-connected disability. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran is currently evaluated as 10 percent disabled for his right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5010- 5257. His service-connected disorder is that of residuals of anterior cruciate ligament reconstruction with chondromalacia. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (1999). The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disorder, and impairment of the knee under Diagnostic Code 5257 is a residual condition. Traumatic arthritis is rated as degenerative arthritis, which is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5256 through 5263 (1999). When, however, the limitation of motion for the specific joint involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is applied for a major joint affected by limitation of motion. See Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f) (1999). In the absence of limitation of motion, a 10 percent disability rating is assigned under Diagnostic Code 5003 where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent disability rating is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. These 10 and 20 percent ratings based on x- ray findings will not be combined with ratings based on limitation of motion. Under Diagnostic Code 5257 for other impairment of the knee, a 10 percent disability rating is assigned for slight impairment of the knee with recurrent subluxation or lateral instability. In order to warrant a 20 percent disability rating, the evidence would need to show moderate impairment of the knee with recurrent subluxation or lateral instability. A 30 percent disability rating requires severe impairment of the knee with recurrent subluxation or lateral instability. The regulations define normal range of motion for the leg as zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71 (1999). The most recent range of motion for the veteran's right knee was from zero to 140 degrees upon VA examination in 1998. The criteria for evaluating limitation of flexion or extension of the leg are given at Diagnostic Codes 5260 and 5261. Flexion limited to 60 degrees is noncompensable under Diagnostic Code 5260. A compensable evaluation requires flexion limited to 45 degrees. Limitation of extension to five degrees is noncompensable under Diagnostic Code 5261, and extension limited to 10 degrees is required for a 10 percent evaluation. With full range of motion, there is no basis for assigning a compensable evaluation under Diagnostic Code 5260 or 5261. The RO assigned the 10 percent disability rating for the veteran's right knee indicating that this was based on painful and/or limited motion of a major joint. The 10 percent rating cannot be assigned for the right knee pursuant to the diagnostic criteria under Diagnostic Code 5003 because the veteran does not have a major joint affected by limitation of motion. There is certainly no basis for assignment of a higher rating under Diagnostic Code 5003. The veteran complains of instability of the right knee, and he testified that his knee has given out resulting in falls. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). Despite the veteran's complaints, there is no post-service medical evidence of subluxation of the right knee or of any laxity or instability of the knee. The VA examination in 1998 showed no abnormalities of the right knee. The service medical records did show evidence of right knee instability, and, resolving any reasonable doubt in the veteran's favor, the Board will conclude that he does experience some instability or laxity of the right knee. It is clear, however, that any instability or laxity that he experiences is no more than slight since such findings were not present upon VA examination. It is also important to note that the severity of the veteran's right knee disorder has not been such that he has found it necessary to seek outpatient treatment in the two years since his separation from service. Although somewhat explained by the fact that he lacked health insurance, as he testified, it is reasonable to conclude that if the veteran's right knee disorder were of a severe level, such that it interfered with his daily activities, he would have been compelled to seek treatment. Moreover, he testified that despite the fact that he is employed in an occupation that requires extensive walking, he has not missed any time from work due to his right knee condition. Therefore, even resolving all reasonable doubt in the veteran's favor, the Board cannot conclude that his right knee disorder has had any more than a minimal effect on his functioning. Since there is no evidence from which the Board could conclude that the subluxation or instability of the right knee that the veteran allegedly experiences is any more than slight, the preponderance of the evidence is against assignment of an increased disability rating under Diagnostic Code 5257. Where the medical evidence shows that the veteran has arthritis of a joint and where the diagnostic code applicable to his disability is not based upon limitation of motion, a separate rating for limitation of motion under Diagnostic Code 5003 may be assigned only if there is additional disability due to limitation of motion. VAOPGCPREC 23-97. The veteran is rated under a hyphenated diagnostic code (Diagnostic Code 5010-5257). One of the diagnostic codes applicable to his service-connected disability (i.e., traumatic arthritis under Diagnostic Code 5010) is based upon limitation of motion. The other diagnostic code for impairment of the knee under Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The veteran could receive a separate evaluation for arthritis with limitation of motion under Diagnostic Code 5003 and for other impairment of the knee with subluxation or lateral instability under Diagnostic Code 5257 if he had additional disability attributable to limitation of motion. However, the medical evidence does not show that he has any limitation of motion. He cannot, therefore, be granted separate evaluations under Diagnostic Code 5257 and under Diagnostic Code 5003 since he does not manifest symptomatology warranting a separate evaluation. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that, in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f) (1999). The veteran has consistently complained of right knee pain, and he maintains that impairment from his knee disorder is directly proportional to his level of physical activity. However, the objective medical evidence does not support a conclusion that the veteran suffers any additional functional loss and/or limitation of motion. He has full range of motion for the right knee. There is no evidence of symptoms such as impaired gait, impaired muscle strength, or muscle atrophy, which indicates that the effect of the veteran's knee disorder on his functional abilities is negligible. Upon VA examination in 1998, he walked normally, and he could squat and stand on his toes and heels. He does not receive regular treatment for his knee disorder, nor has he required physical therapy. He does not require assistive devices for ambulation. There is nothing in the medical records showing findings that would support a higher evaluation. The veteran's primary complaint regarding his right knee disorder is pain, especially with certain physical activity, and his complaints of pain must be considered in evaluating his claim. Although the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Board finds that a 10 percent disability rating for the right knee for, at most, minimal overall impairment adequately compensates the veteran for his pain and for any occasional functional loss he may experience during flare- ups. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the veteran's disability in his favor. However, the objective medical evidence does not create a reasonable doubt regarding the severity of his right knee disability. The evidence shows no objective evidence of disability such as limitation of motion, subluxation, or laxity. As discussed above, any instability of the right knee that he does have is no more than slight and is not shown by the post-service medical evidence. The evidence does not show more severe and frequent symptomatology such as would warrant a 20 percent disability rating for the knee. The regulations establish disability ratings that are intended to compensate a veteran for average impairment in earning capacity due to a service- connected disorder, see 38 U.S.C.A. § 1155 (West 1991), and, in this case, the veteran testified that his right knee disorder has not affected his earning capacity in that he has not missed any time from work. Accordingly, the Board finds that the preponderance of the evidence is against assignment of a disability rating higher than 10 percent for the veteran's right knee disorder. The Board has considered all other potentially applicable diagnostic codes. The veteran does not have traumatic acquired genu recurvatum with weakness and insecurity in weight-bearing to warrant the maximum disability rating of 10 percent under Diagnostic Code 5263. Neither does he have symptomatic removal of the semilunar cartilage to warrant the maximum disability rating of 10 percent under Diagnostic Code 5259. None of these diagnostic codes would result in a higher disability evaluation for the veteran's right knee condition, nor would they be more appropriate to his disability. Diagnostic Code 5256 pertains to ankylosis of the knee, and a 30 percent disability rating is warranted where the knee is ankylosed in full extension or in slight flexion between zero and 10 degrees. The medical evidence does not indicate that the veteran's right knee is ankylosed, and it is clear that the knee is immobilized since he has full range of motion. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure") (citation omitted). Therefore, the criteria for an increased rating under Diagnostic Code 5256 have not been met. In order to be evaluated at 20 percent under Diagnostic Code 5258, there must be dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In order to be evaluated at 20 percent under Diagnostic Code 5262, there must be malunion of the tibia and fibula with moderate knee disability. There is no evidence in this case of dislocation of the semilunar cartilage of the veteran's right knee. There is also no evidence of malunion of the right tibia and fibula. Therefore, the criteria for an increased rating under these diagnostic codes have not been met. The preponderance of the evidence being against the veteran's claim, the evidence is not equally balanced, and the veteran's claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hearing loss is denied. Entitlement to a disability rating higher than 10 percent for residuals of anterior cruciate ligament reconstruction with chondromalacia, right knee, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals