Citation Nr: 1749085	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-11 194A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an increased disability rating for right knee strain with limitation of flexion and osteoarthritis in excess of 30 percent from August 25, 2005 to July 22, 2009, in excess of 100 percent from July 23, 2009 to September 30, 2009, and in excess of 30 percent from October 1, 2009.  

2.  Entitlement to an increased disability rating greater than 20 percent for chondromalacia with patellar subluxation, right knee.  

3.  Entitlement to an increased disability rating greater than 10 percent for right knee strain with limitation of extension and osteoarthritis.  


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

E. Miller, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from July 1991 to September 1998.  

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

These matters were last before the Board in March 2017 at which time the Board found an RO decision to reduce the Veteran's right knee disability with limitation of flexion and osteoarthritis from 30 percent to 10 percent improper and increased the rating back to 30 percent for the applicable period.  The Board decision also remanded the remaining claims of increased disability rating for a right knee strain with limitation of flexion and osteoarthritis, chondromalacia with patellar subluxation (right knee), and right knee strain with limitation of extension and osteoarthritis, for further development to the RO.  The RO completed the requested development and returned the claims to the Board for appellate review.  


FINDINGS OF FACT

1.  The Veteran is receiving the maximum schedular rating for right knee strain with limitation of flexion and osteoarthritis under Diagnostic Code 5010-5260; ankylosis of the right knee is not shown.  

2.  The Veteran was in a period of convalescence due to right knee surgery from July 23, 2009 to September 30, 2009.  

3.  The Veteran's chondromalacia with patellar subluxation of the right knee was manifested during the relevant period by severe recurrent subluxation or lateral instability.  

4.  Prior to November 5, 2015, the Veteran's right knee disability was not manifested by limitation of extension to 10 degrees or more. 

5.  From November 5, 2015, the Veteran's right knee strain with limitation of extension and osteoarthritis was manifested by, at worst, extension to 10 degrees with pain.  


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 30 percent from August 25, 2005 to July 22, 2009, in excess of 100 percent from July 23, 2009 to September 30, 2009, and in excess of 30 percent from October 1, 2009, for right knee strain with limitation of flexion and osteoarthritis have not been met.  38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.30, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260 (2016).  

2.  The criteria for a disability rating of 30 percent for chondromalacia with patellar subluxation of the right knee are met for the period prior to July 23, 2009, and the period from October 1, 2009.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (2016).  

3.  The criteria for a separate compensable rating for right knee strain with limitation of extension and osteoarthritis are not met prior to November 5, 2015.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261 (2016).  

4.  The criteria for a disability rating in excess of 10 percent for right knee strain with limitation of extension and osteoarthritis are not met for the period from November 5, 2015.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that the notice requirements have been satisfied by letters dated in October 2005 and September 2009.  

VA has also satisfied its duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has obtained all identified and available treatment records for the Veteran.  In addition, during the relevant appeal period, the Veteran underwent VA examinations in November 2005, August 2007, November 2015, March 2017, and August 2017.  Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf.  

For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist.  Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim.  

II.  Increased Ratings 

	a.  Background 

The procedural history leading to this point of the appeal requires discussion prior to proceeding with the determination on the Veteran's increased rating claim for right knee strain with limitation of flexion and osteoarthritis.  The Veteran filed a non-initial increased rating claim in August 2005 for his knees, claiming they had worsened in severity.  The left knee claim is underway and not yet perfected.  As a result of the increased rating claim, the Veteran underwent a VA examination for his knees in November 2005 and the RO granted an increase to 30 percent in a January 2006 rating decision, with an effective date of August 25, 2005.  

Following up on that claim later on, the RO scheduled the Veteran for another VA examination for his knees which he attended in August 2007.  As a result of that VA examination, the RO proposed to reduce the Veteran's right knee disability (listed at that time as one disability of right knee strain), back to 10 percent effective May 1, 2008, which the RO ultimately reduced in a March 2008 rating decision.  The Veteran timely disagreed with that decision in a letter stating that he thought his knee was worse than 10 percent.  That notice of disagreement was interpreted as another increased rating claim for the Veteran's knee, rather than as a disagreement with whether the reduction to 10 percent was proper.  The RO issued a statement of the case (SOC) in response in March 2009 continuing the 10 percent rating.  

The Veteran underwent right knee arthroscopy in 2009.  A September 2009 rating decision of the RO granted a temporary 100 percent evaluation for right knee strain based on convalescence from July 23, 2009 to September 30, 2009.  

Eventually the right knee strain claim arrived at the Board in February 2013.  The Board issued a remand directing the RO to adjudicate whether the reduction in rating was proper as well as to adjudicate an increased rating claim on the right knee strain claim.  

As a result of the Board remand, the RO reevaluated the Veteran's right knee claim and assigned two new additional disability evaluations for his right knee, for a total of three separate evaluations for the right knee alone.  In a December 2015 rating decision, the RO assigned a separate evaluation for right knee strain with limitation of extension and osteoarthritis.  In a May 2016 rating decision, the RO assigned a separate evaluation for chondromalacia with patellar subluxation, right knee.  The RO created a supplemental statement of the case (SSOC) in May 2016 to include these two new claims plus the two prior right knee issues remanded by the Board in 2013.  The Veteran's representative sent an informal hearing presentation regarding all four of these issues to the Board in July 2016.  

In March 2017, the Board determined that the previous reduction in rating to 10 percent was improper and revived the previous 30 percent rating for the Veteran's right knee strain.  The Board then remanded the three claims for increased rating for the Veteran's right knee for additional development to the RO.  In response to the Board's decision, the Veteran's first rating for right knee strain, now classified as right knee strain with limitation of flexion and osteoarthritis was returned to 30 percent from August 25, 2005 to July 22, 2009, 100 percent from July 23, 2009 to September 30, 2009, and 30 percent from October 1, 2009.  

	b.  Right Knee Strain with Limitation of Flexion and Osteoarthritis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities.  38 C.F.R. § 4.14.  

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2016).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of 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.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion.  See 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  See 38 C.F.R. § 4.45.  

In Johnson, the Federal Circuit held that 38 C.F.R. § 3.321 required consideration of whether a Veteran is entitled to referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating based on the impact of his or her service-connected disabilities, individually or collectively, on the Veteran's "average earning capacity impairment" due to such factors as marked interference with employment or frequent periods of hospitalization.  See Johnson v. McDonald, 762 F.3d 1362 (2014); see also 38 C.F.R. § 3.321 (b)(1).  As is explained below in greater detail, following a review of the record evidence, the Board concludes that the symptomatology experienced by the Veteran as a result of his service-connected disabilities, individually or collectively, does not merit referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating.  In other words, the record evidence does not indicate that the Veteran's service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule.  

As explained above the Veteran's disability rating for right knee strain with limitation of flexion and osteoarthritis during the appeal period is: 30 percent from August 25, 2005 to July 22, 2009, 100 percent from July 23, 2009 to September 30, 2009, and 30 percent from October 1, 2009, under Diagnostic Code (DC) 5010-5260.  A maximum 30 percent rating is assigned under DC 5260 for leg flexion limited to 15 degrees.  See 38 C.F.R. § 4.71a, DC 5260 (2016).  Because the Veteran is in receipt of the maximum schedular rating available under DC 5260, other appropriate DCs for evaluating knee and leg disabilities should be considered, keeping in mind that the Veteran is already service-connected for his right knee under DCs 5257 and 5261.  

The Board notes in this regard that a 40 percent rating is assigned under DC 5256 for knee ankylosis in flexion between 10 and 20 degrees.  A 50 percent rating is assigned under DC 5256 for knee ankylosis in flexion between 20 and 45 degrees.  A maximum 60 percent rating is assigned under DC 5256 for extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more.  See 38 C.F.R. § 4.71a, DC 5256 (2016).  And a maximum 40 percent rating is assigned under DC 5262 for non-union of the tibia and fibula with loose motion requiring a brace.  See 38 C.F.R. § 4.71a, DC 5262 (2016).  

The Board next finds that the preponderance of the evidence is against granting the Veteran's claim for a disability rating greater than 30 percent for right knee osteoarthritis with limitation of flexion.  The Veteran contends that his right knee disability is more disabling than currently evaluated.  As noted elsewhere, because the Veteran already is in receipt of the maximum 30 percent rating available for limitation of leg flexion under DC 5260, other applicable DCs for evaluating disabilities of the knee and leg must be considered in evaluating his entitlement to an increased rating for his service-connected right knee osteoarthritis with limitation of flexion.  Despite the Veteran's assertions to the contrary, the record evidence does not support a finding that this disability has worsened such that an increased rating is warranted for his service-connected right knee osteoarthritis with limitation of flexion under another potentially applicable DC for evaluating knee and leg disabilities.  The evidence shows instead that the Veteran's service-connected right knee osteoarthritis with limitation of flexion is manifested by, at worst, flexion limited to 40 degrees, complaints of severe knee pain, and use of a brace and cane.  

The November 2005 VA examiner reported Veteran's pain at seven or eight out of ten, along with weakness, stiffness, swelling, instability, locking, popping, fatigue, and lack of endurance with right knee.  The examiner noted full range of motion for right knee flexion with a loss of 20 degrees after repetitive use (120 degrees).  On review of x-rays dated November 2005, the examiner diagnosed mild osteoarthritis with no evidence of joint effusion.  

In the November 2015 VA examination, the flexion was reported as limited to 50 degrees initially, and 40 degrees after repetitive use testing.  There was no ankylosis and no joint instability.  The examiner noted swelling as a result of the 2009 meniscectomy in the right knee.  Muscle strength testing was 4 out of 5 for the right knee with no atrophy.  The examiner noted an October 2015 MRI showing mild osteoarthritis of the right knee.  

The April 2017 VA examiner reported the Veteran's pain had gotten worse since 2006 and it was a ten out of ten.  The Veteran reported flare-ups regularly, and that running, walking, and climbing stairs was difficult.  Range of motion testing showed right knee flexion to 55 degrees and same result on repetitive testing.  Muscle strength on the right knee was three out of five.  There was crepitus but no ankylosis or atrophy.  Joint stability test was normal.  

The August 2017 VA examination reported the Veteran complained of pain to the point that the examiner could not perform the repetitive motion testing.  There was obvious swelling in the knees reported by the examiner.  Right knee flexion was listed as 90 degrees.  Muscle strength was four out of five for the right knee.  There was no ankylosis and no atrophy.  The examiner noted that the Veteran had been using a cane for walking for about 18 months and knee brace constantly.  The examiner noted no joint instability.  An August 2017 MRI showed mild degenerative changes in both knees, with the right knee worse.  

The Board acknowledges the Veteran's lay statements that his service-connected right knee osteoarthritis with limitation of flexion results in an extremely painful and unstable right knee on a daily basis.  With respect to the Veteran's service-connected right knee osteoarthritis with limitation of flexion, the record evidence does not show that he experiences right knee ankylosis in flexion between 10 and 20 degrees or non-union of the tibia and fibula (i.e., at least a 40 percent rating under DC 5256 or DC 5262, respectively) such that an increased rating is warranted for this disability under other applicable DCs for evaluating knee disabilities.  See 38 C.F.R. §§ 4.71a, DCs 5256, 5262 (2016).  The VA examiners have not found evidence of right knee ankylosis on physical examination.  The Board acknowledges that the Veteran experiences both limited flexion and limited extension in his right knee.  He already is in receipt of separate ratings based on his limitation of motion.  See VAOPGCPREC 9-2004.  Accordingly, the Board finds that the criteria for a disability rating greater than 30 percent for right knee osteoarthritis have not been met, apart from the period of convalescence for right knee surgery from July 23, 2009 to September 30, 2009, for which he has already received a temporary 100 percent evaluation for his right knee strain.  

c.  Chondromalacia with Patellar Subluxation, Right Knee  

The Veteran is currently receiving a 20 percent evaluation for chondromalacia with patellar subluxation, right knee, effective from October 16, 2015.  Moderate recurrent subluxation or lateral instability warrants a 20 percent rating.  Severe recurrent subluxation or lateral instability warrants a 30 percent rating.  38 C.F.R. § 4.71a, DC 5257.  

The evidence prior to October 2015 does not show that the Veteran's service connected knee disability resulted in symptoms consistent with recurrent subluxation or lateral instability.  In this regard, a July 2007 private treatment record notes that the Veteran while complaining of right knee swelling, had no ligamentous instability.  

An August 2007 VA examination report similarly notes that the Veteran did not have any instability or give way in the right knee.  Likewise, the examination report notes that there were no episodes of dislocation, subluxation, or locking episodes and no effusion in the right knee.  

While a VA physical therapist in April 2008 noted the Veteran had a destabilizing pelvis with increasing low back and hip pain, the therapist noted that she would "appreciate expertise of orhto regarding right knee cysts as primary source of pain and subsequent instability."  A subsequent October 2008 private treatment records notes that the Veteran did not have any instability.  However, some lateral subluxation of the right patella with overhanging osteophytes was observed.  

An October 16, 2015 private treatment record documents the Veteran had positive patellofemoral crepitus to 3+ on the right with no significant instability.  Evaluation of the Veteran's right knee X-rays showed patellofemoral views on the right knee with lateral subluxation with substantial loss of the patellofemoral joint space and periarticular osteophytes.  The doctor described the condition as "bilateral patellar subluxation with severe chondromalacia patella bilaterally, right greater than left."  

In a November 2015 VA examination, the examiner noted there was no history of recurrent subluxation for the right knee, and no right knee joint instability per testing.  However, the examination fails to address prior evidence showing instability and subluxation in the October 2008 and October 2015 private treatment records. 

In the August 2017 VA examination, the examiner stated that the Veteran's chondromalacia condition had not changed.  The examiner reviewed the Veteran's claims file to include previous medical reports regarding the right knee conditions.  

In light of the foregoing, the Board finds that there is sufficient evidence to show that the Veteran's right knee disability has resulted in lateral instability and/or subluxation throughout the appeal period.  With respect to the severity of the disability, the Board finds that the evidence presents reasonable doubt as to the degree of disability for the Veteran's right knee chondromalacia disability.  In this regard, the October 2015 private examiner felt that the Veteran's disability was severe.  As such the Board is assigning the higher evaluation, which is 30 percent, the maximum schedular rating available for this disability.  38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.71 DC 5257 (2016).  Accordingly, a 30 percent for chondromalacia with patellar subluxation is warranted for the period prior to July 23, 2009, and the period from October 1, 2009.

d.  Right Knee Strain with Limitation of Extension and Osteoarthritis  

Under DC 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees.  38 C.F.R. § 4.71a, DC 5261.  The Veteran is currently rated at 10 percent for his right knee limitation of extension with osteoarthritis.  

The evidence prior to November 5, 2015 does not show that the Veteran's right disability was manifested by limitation of extension to 10 degrees or more as contemplated by a compensable evaluation under DC 5261.  In this regard, the report of the August 2007 VA examination notes extension to 0 degrees with pain at the end of recorded motion and no additional loss of motion on repetitive use.  Similarly, extension limited to 0 degrees is noted in private treatment records dated in October 2008 and July 2009.  Private treatment records record right knee extension to 5 degrees on October 16, 2015.  In light of the foregoing, the Board concludes that a separate compensable evaluation based on limitation of extension is not warranted prior to November 5, 2015.  

The first evidence of limitation of motion of such severity to warrant a compensable evaluation based on limitation of extension is the report of a November 5, 2015 VA examination.  At that time, while the initial range of motion for the Veteran's right knee was to 5 degrees extension with pain, to include with weight bearing, repetitive use range of motion testing resulted in additional loss of extension to 10 degrees due to pain, weakness, and lack of endurance.  

At the August 2017 VA examination, the right knee extension was to 10 degrees with pain, to include on weight bearing, passive motion, and non-weight bearing, with objective tenderness or pain on palpation of the joint.  The Veteran was unable to perform repetitive range of motion testing due to pain and swelling in the knees.  The Veteran reported that he does have flare-ups when walking, standing, or sitting too long.  

Since November 5, 2015, extension limited to greater than 10 degrees was not shown.  A 20 percent rating is warranted for extension limited to 15 degrees, which is not shown by the competent medical evidence of record.  Thus, a rating higher than 10 percent is not warranted for the period from November 5, 2015.  

The Veteran contends that his right knee disabilities flare up when completing certain activities, causing functional loss by way of pain and limitation of activities.  The Board also notes that on VA examinations, the Veteran experienced additional functional loss on repetitive motion.  However, even when the Veteran does experience flare-ups of his knee disabilities, the Board finds that the medical evidence does not suggest that, on repetitive use, the knees would be restricted by pain or other factors to be limited in flexion or extension such that a higher rating and/or additional separate ratings would be warranted at any time during the appeal period.  The Board has carefully considered and factored in the Veteran's functional loss and limitation on repetition for the entire appeal period.  However, the Board finds that the evidence is against a finding that any further limitation due to pain results in the knees being limited to a sufficient extent to warrant a higher rating or any separate rating.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

"Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2016).  Thus, to the extent that the Veteran's disabilities have impeded his ability to work, the Board finds that this manifestation of his disability is also contemplated by the schedular criteria.  The competent evidence of record shows that the Veteran's knee disabilities are primarily manifested by pain, tenderness and limitation of motion.  The rating criteria for the knees reasonably describe the Veteran's disability level and are broad enough to allow for any related symptomatology that affects the Veteran's ability to move the knees, walk, and attend to activities of daily living to include his occupation.  Many of the applicable diagnostic codes used to rate knee disabilities provide for ratings based on limitation of motion.  The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  The schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss consistent with the Veteran's disability picture.  Therefore, the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by functional impairments.  Overall, the Board finds that the rating criteria are adequate to evaluate the Veteran's level of impairment and referral for consideration of extraschedular rating is not warranted.  

Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced.  The Veteran is service-connected for multiple disabilities.  The pertinent symptoms and manifestations have been attributed to the appropriate service-connected disabilities.  See Mittleider v. West, 11 Vet. App. 181 (1998).  The evidence does not indicate that this is a case involving an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities.  

"Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."  See also Yancy v. McDonald, 27 Vet. App. 484, 493 (2016).  


ORDER

Entitlement to an increased disability rating for right knee strain with limitation of flexion and osteoarthritis in excess of 30 percent from August 25, 2005 to July 22, 2009, in excess of 100 percent from July 23, 2009 to September 30, 2009, and in excess of 30 percent from October 1, 2009, is denied.  

Entitlement to a disability rating of 30 percent for chondromalacia with patellar subluxation, right knee, is granted for the period prior to July 23, 2009, and the period from October 1, 2009.

Entitlement to a separate compensable evaluation for right knee strain with limitation of extension is not warranted prior to November 5, 2015.  


A disability rating greater than 10 percent for right knee strain with limitation of extension and osteoarthritis from November 5, 2015 is denied.  




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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