Citation Nr: 0001782 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 96-00 045A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increase in a 10 percent rating for a right knee disability. 2. Entitlement to an increase in a 10 percent rating for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from December 1988 to April 1991. He appeals to the Board of Veterans' Appeals (Board) from an RO decision which denied an increase in a 10 percent rating for a right knee disability and an increase in a 10 percent rating for a left knee disability. By way of background, a June 1995 RO decision proposed to reduce, to 0 percent, 10 percent ratings which were assigned for both knees; the reduction was carried out by a September 1995 decision; an October 1997 RO decision restored the 10 percent ratings for both knees; and the veteran thereafter continued to appeal for ratings higher than 10 percent for both knees. FINDINGS OF FACT 1. The veteran's right knee disability includes chondromalacia and is manifested by minimal or no limitation of motion (motion was full on the last examination), crepitation on motion, no instability, and subjective complaints of increased symptoms during flare-ups. 2. The veteran's left knee disability includes chondromalacia and is manifested by minimal or no limitation of motion (motion was full on the last examination), crepitation on motion, slight instability, and subjective complaints of increased symptoms during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Code 5257, 5260, 5261 (1999). 2. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Code 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran served on active duty from December 1988 to April 1991. During service he had bilateral knee complaints. A diagnostic arthroscopy of the right knee in March 1990 showed synovitis and chondromalacia of the patella. He was medically discharged from service, with severance pay, in April 1991 for a bilateral knee disorder described as chondromalacia patella, retropatellar pain syndrome, synovitis, and arthrosis. On an August 1991 VA examination, the diagnoses included chondromalacia patella, retropatellar pain syndrome, and synovitis of both knees, right worse than left. In September 1991, the RO granted service connection for chondromalacia of the right and left knees, each knee rated 10 percent. On a June 1995 VA examination, the veteran reported persistent right knee pain and a frequent giving way of the left knee. Both knees had range of motion from 0 to 140 degrees. There was no instability, swelling, or tenderness of the knees. X-rays of the right knee were negative. The diagnoses included arthralgias of the knees of unknown cause. The veteran testified at a hearing at the RO in January 1996. He indicated he was a full-time student and also had a full- time job. He described situations (running, prolonged standing, etc.) which caused pain, fatigue, instability, and swelling of his knees. He said his main problem with his knees was instability, not limitation of motion. A friend of the veteran testified that the veteran continued to have knee problems. On a November 1996 VA examination, the veteran complained of chronic knee pain, more so on the right. He said he had occasional right knee instability. Examination showed that range of motion of both knees was 0 to 135 degrees, with no instability, muscle atrophy, or joint effusion. He had crepitus of the knees on flexion and extension. The diagnoses included chronic strain of the knee joints. On a September 1997 VA examination, the veteran reported chronic knee pain, particularly on the right, aggravated by walking up stairs, driving a car, and changes in the weather. He reported that his right knee felt unstable. Examination showed range of motion of both knees of 0 to 130 degrees, with no instability, muscle atrophy, or joint effusion. He had crepitation of the knees on flexion and extension. X- rays of both knees were normal. The diagnosis was chronic strain of the knee joints. On a July 1999 VA knee examination, the veteran reported pain, weakness, and occasional stiffness of the right knee. He said he had no swelling, heat, or redness, but had slight instability without locking. He reported that there was fatigability and lack of endurance. The veteran reported he had daily flare-ups of right knee symptoms which last 12 hours. The examiner said he did not see the veteran during a flare-up, but estimated further limitation of motion of the right knee would be 20 percent. The veteran said he had less pain with his left knee and very little weakness and only occasional stiffness. He said there was no swelling, heat, redness, giving way, or locking. He reported that there was slight fatigability and lack of endurance of the left knee. The veteran reported he had flare-ups of left knee symptoms once a week that lasted for 2 hours. The examiner said he did not see the veteran during a flare-up, but estimated further limitation of motion of the left knee would be 10 percent. Physical examination of both knees showed they had range of motion from 0 to 140 degrees with crepitation. There was no instability of the right knee and slight instability of the left knee. X-rays of the knees were normal. The diagnoses included chondromalacia of both knees with slight instability of the left knee. II. Analysis The veteran's claims for an increase in a 10 percent rating for a right knee disability, and an increase in a 10 percent rating for a left knee disability, are well grounded, meaning plausible. The RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claims. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnotic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight and 20 percent when moderate. 38 C.F.R. § 4.71a, Code 5257. Limitation of flexion of a leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, and 20 percent when limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension of a leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, and 20 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5261. Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The 1995 VA examination showed both knees had range of motion of 0 degrees to 140 degrees; the 1996 VA examination showed both knees had range of motion of 0 degrees to 135 degrees; the 1997 VA examination showed both knees had range of motion of 0 degrees to 130 degrees; and the latest VA examinaiton in 1999 showed both knees had range of motion of 0 degrees to 140 degrees. In sum, the veteran objectively has had full extension of both knees and minimal or no limitation of flexion of both knees; motion was full on the latest examination. Such findings do not support even a compensable rating for either knee under Codes 5260 and 5261. At the latest examination the veteran gave a subjective history of flare-ups of knee symptoms, and the doctor attempted to estimate the degree of additional limitation of motion during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet.App. 202 (1995). Such an estimate is purely conjectural under the circumstances of this case, particularly since no visible pain behavior or other objective signs of pain were noted when the veteran performed knee motion during the examination. See 38 C.F.R. § 4.40. While the veteran may have some additional symptoms on use of the knees or during flare-ups, there is no credible evidence that such results in additional limitation of motion to the extent required for a compensable rating for either knee under the criteria of Codes 5260 and 5261. As to Code 5257, concerning recurrent subluxation or lateral instability of the knees, the 1995, 1996, and 1997 VA examinations showed both knees were stable; the 1999 VA examination noted the right knee was stable and there was slight instability of the left knee. The medical findings support only a 10 percent rating for the left knee (slight instability) and a noncompensable rating for the right knee (no instability) under the criteria of Code 5257. X-rays of both knees are normal; the veteran does not have arthritis of either knee. Thus legal authority concerning dual ratings for a knee, when there is both arthritis and instability, is not applicable in this case. See VA General Counsel's opinions, VAOPGCPREC 9-98 and 23-97. The Board finds that the preponderance of the evidence is against the claims for an increase in the current 10 percent rating for the right knee disability and the current 10 percent rating for the left knee disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for a right knee disability is denied. An increased rating for a left knee disability is denied. L. W. TOBIN Member, Board of Veterans' Appeals