BVA9503877 DOCKET NO. 90-52 171 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased (compensable) evaluation for chondromalacia of the right patella. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from September 1977 to November 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a April 1989, rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for disabilities of both knees. A notice of disagreement was received in November 1989. A statement of the case was sent to the veteran in January 1990. A substantive appeal was received in January 1990. In a March 1991 decision, the Board remanded this case for further development. In an August 1991 rating decision, entitlement to service connection for chondromalacia of the right patella was granted and assigned a non-compensable rating. A statement of the case was sent to the veteran in October 1991 which furnished him with the law and regulations pertinent to an increased rating for service-connected chondromalacia of the right patella. In an April 1992 decision, the Board granted entitlement to service connection for a left knee disability and remanded the increased rating issue as to the right knee so that a personal hearing could be held before a member of the Board. Thereafter, a May 1992 rating decision implemented the Board's April 1992 grant of service connection for a left knee disability and characterized that disability as chondromalacia of the left patella. The veteran was notified of that decision and of his procedural and appellate rights in a May 1992 letter. In an April 1993 decision, the Board remanded this case again to the RO for further development. The issue of entitlement to an increased rating for chondromalacia of the right patella is ready for appellate review. The Board notes that congressional correspondence was received at the Board in September 1994 which indicated that the veteran was not satisfied with the non-compensable ratings assigned to his disabilities of both knees. As noted, the issue of an increased rating for the right knee is presently in appellate status, however, the Board finds that the veteran has also raised the issue of entitlement to an increased rating for chondromalacia of the left patella, and refers this issue to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right knee disability is more disabling than is represented by the current non-compensable rating. He contends that he currently experiences pain in the right knee at least three times a week, particularly during the mornings. He relates that his current symptomatology includes popping, instability, and pain on motion. He further relates that he has difficulty climbing stairs and that he is no longer is able to run. He asserts that he was forced to change to sedentary employment due to his disability. 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 veteran's claims file. 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 veteran is not entitled to a compensable rating for his service-connected chondromalacia of the right knee. FINDINGS OF FACT 1. The veteran's service-connected chondromalacia of the right patella is objectively manifested by a positive patella grind test. 2. The veteran does not exhibit any limitation of motion, crepitus, effusion, loss of strength, or atrophy of the quadriceps; there is no radiographic evidence of chondromalacia patellae; and he is able to ambulate with a normal gait and perform heel and toe walk. CONCLUSION OF LAW The schedular criteria for a compensable disability evaluation for chondromalacia of the right patella, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). A review of the veteran's service medical records reveals that the veteran first complained of right knee pain in January 1982. In April 1982, he was involved in a motor vehicle accident. In December 1982, he was diagnosed as having chondromalacia of the right patella. In January 1983, he continued to be treated for right knee pain. At that time, physical examination revealed range of motion of the right knee within normal limits, no asymmetrical ligament laxity, negative McMurray's sign, a slight decrease in strength, no swelling, no locking, and slight tenderness of the medial facet of the right patella. The diagnosis was mild chondromalacia. The veteran continued to be treated for right knee pain during 1983, after that time, there was no further treatment for a right knee disability. Following service, the veteran was afforded a VA examination in February 1989. Physical examination revealed that the veteran ambulated with a normal gait and he was able to heel and toe walk and perform deep knee bends. He could extend to zero degree and flex to 135 degrees and there was no crepitation noted during range of motion exercises. Medial joint line pain was elicited. Grinding and McMurray's sign were negative. Thereafter, in an April 1989 decision, it was determined that the February 1989 VA examination did not show that the veteran had a disability of the right knee and service connection was denied. The veteran appealed that decision. In conjunction with his appeal, the veteran's VA outpatient records were obtained. In March 1990, the veteran was treated for complaints of right knee pain with increased pain upon climbing stairs. An examination of the right knee revealed no swelling, effusion, deformity, or limitation of motion. In May 1991, the veteran was afforded another VA examination. The veteran complained of weakness and pain in his right knee. Physical examination revealed that the veteran ambulated with a normal gait and was able to walk on his heels and toes. He could extend to zero degree and flex to 135 degrees without crepitation. However, coarse crepitation was produced on movement of patella in the femoral grooves. No joint line pain, instability, or effusion was elicited. Grinding and McMurray's sign were negative. The diagnosis was chondromalacia of the right knee with synovitis. X-rays were normal. Based on the service medical records which revealed a diagnosis and treatment of chondromalacia of the right knee and based on the current diagnosis of chondromalacia of the right knee, the veteran was granted entitlement to service connection for chondromalacia of the right knee, and was assigned a non- compensable rating in an August 1991 rating decision. Thereafter, the veteran indicated that he was seeking an increased rating for his service-connected right knee disability and requested a personal hearing before a member of the Board. In compliance with the veteran's request, he was afforded a personal hearing before a member of the Board in October 1992. At that time, he submitted a letter from his private physician dated in June 1992. In that letter, the physician indicated that he had examined the veteran and determined that he had chondromalacia of the right patella with mild anterior instability and lateral tracking as shown on x-ray. No torn menisci or ligaments was noted. The physician opined that future arthroscopic surgery and lateral release of the patella and possible chondroplasty may be warranted. The veteran also submitted three lay statements which essentially related that the veteran had pain in his right knee. At the time of his personal hearing, the veteran set forth his current complaints regarding his right knee. The veteran related that he experienced pain in the right knee at least three times a week, particularly during the mornings. He related that his current symptomatology includes popping, instability, and pain on motion. He asserted that he had difficulty climbing stairs and that he was no longer is able to run. He further asserted that he was forced to change to sedentary employment due to his disability and relieved the pain with Motrin and muscle relaxants. Following the hearing, the veteran's recent outpatient treatment records were obtained and he was afforded another VA examination. The recent outpatient records revealed that the veteran has received treatment over the last couple of years for right knee pain. In December 1992, the veteran was treated for increased joint line tenderness of the medial aspect of the right knee. At that time, he could extend to zero degrees and flex to 120 degrees. In February 1993, the veteran was treated for right knee pain. At that time, he could extend to zero degrees and flex to 120 degrees and he exhibited no ligament instability, his Lachman's and McMurray's tests were negative, and x-rays showed no abnormalities. In May 1994, he was afforded another VA examination. Physical examination revealed that the right knee was grossly within normal limits. The veteran exhibited normal range of motion without crepitus. There was no significant medial joint line tenderness noted. The quadriceps strength appeared to be 5/5 with no evidence of atrophy. The veteran exhibited moderately severe negative patellar apprehension signs. The patella grind test was positive without evidence of effusion. McMurray's test was negative. X-rays were normal with no radiographic evidence of chondromalacia patellae. The diagnosis was moderately severe chondromalacia patellae. Currently, the veteran contends that his right knee disability is more disabling than is represented by the non-compensable rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). The rating schedule provides a non-compensable rating where flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, 20 percent rating where flexion is limited to 30 degrees, and a 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. Diagnostic Code 5260. It provides a non-compensable rating where extension of the leg is limited to 5 degrees, a 10 percent rating where extension of the leg is limited to 10 degrees, a 20 percent rating where extension of the leg is limited to 15 degrees, and a 30 percent rating for limitation to 20 degrees. 38 C.F.R. Diagnostic Code 5261. The rating schedule also provides a 10 percent rating for slight impairment of the knee, a 20 percent rating for moderate impairment of the knee, and a 30 percent rating for severe impairment of the knee as measured by the degree of recurrent subluxation or lateral instability. 38 C.F.R. Diagnostic Code 5257. Following a review of all of the evidence of records, the Board has considered whether the veteran's disability warrants a higher rating under any of the diagnostic codes set forth above. The recent medical findings, particularly those identified during the May 1994 VA examination, revealed that the veteran has slight to no limitation of motion. In fact, the May 1994 VA examination revealed no limitation of motion. Therefore, the Board finds that the veteran does not meet the criteria for an increased rating under Diagnostic Codes 5260 and 5261. Specifically, the medical records which indicated slight limitation of motion still indicated that he could flex to 120 degrees which exceeds the limitation necessary for a compensable evaluation under Diagnostic Code 5260. Likewise, since the veteran has not exhibited any limitation of extension, a compensable rating under Diagnostic Code 5261 is not warranted. Similarly, the medical evidence does not show that he has ankylosis of the right knee, so Diagnostic Code 5256 is inapplicable. The veteran has also considered whether the veteran warrants an increased rating under Diagnostic Code 5257. However, the medical evidence of record does not reveal recurrent subluxation or lateral instability as required for a higher rating pursuant to the criteria under that code. The veteran contends that he has pain in the right knee which impairs his functional ability. Under 38 C.F.R. § 4.40 (1994), functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. However, a review of the veteran's VA examination revealed that the veteran's complaints of pain are not supported by adequate pathology. The veteran's only positive objective finding was a positive patella grind test, however, no effusion was noted. Further, the veteran does not exhibit any limitation of motion, crepitus, medial joint line tenderness, loss of strength, or atrophy of the quadriceps; his McMurray's sign was negative; and there is no radiographic evidence of chondromalacia patellae. In addition, the Board finds that the veteran's complaints of pain are not supported by his visible behavior. Specifically, he was able to ambulate with a normal gait and perform heel and toe walk. In conjunction with the medical evidence noted above, the Board has considered the statement of the veteran's private physician as well as the lay statements. In regard to the physician's statement, the Board initially notes that the physician did not submit any clinical records or the x-rays to which he referred in his letter. Further, the veteran was afforded an examination by the VA almost two years after he was examined by the private physician. The Board finds the current VA examination to be more probative since the VA examiner had the opportunity to review the entire claims file and since the VA examination is current and reflects the veteran's present level of severity. In addition, the Board has reviewed the lay statements. However, the individuals who submitted the affidavits have not been shown to be capable of making medical conclusions, thus, they are not able to offer any medial basis for the veteran's subjective complaints of pain. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Therefore, the Board concludes that a non-compensable rating under Diagnostic Code 5257 for the veteran's right knee disability adequately represents the current level of his service-connected disability. In addition, the disability picture is not so unusual such as to require frequent periods of hospitalization or marked interference with employment such as to render impractical the regular schedular standards. 38 C.F.R. § 3.321 (1994). Accordingly, the Board concludes that the schedular criteria for a compensable disability evaluation for chondromalacia of the right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Diagnostic Code 5257 (1994). The Board acknowledges the statement of the veteran's private physician that surgery may be warranted in the future, however, this decision is based on the veteran's current level of disability. If the veteran's disability increases in severity at some point in the future, he may submit a new claim for an increased rating. ORDER The appeal is denied. G. H. SHUFELT 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. (CONTINUED ON NEXT PAGE) 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.