Citation Nr: 1754218	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-10 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for service-connected chondromalacia of the right knee.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Hubers, Counsel


INTRODUCTION

The Veteran had active service from September 1977 to April 1982 and from March 1983 to September 1995.

This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran testified before the undersigned Veterans Law Judge at a hearing held via video conference in June 2015 with respect to the right knee issue.  A transcript of that hearing is of record.

In January 2017, the Board denied the above referenced claim.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC or Court).  During that appeal, VA and the Veteran entered into a Stipulated Agreement and agreed to a Joint Motion to Terminate the Appeal.  Pursuant to the Stipulated Agreement and Joint Motion, the Court terminated the appeal.  The matter has returned to the Board for implementation of the Stipulated Agreement.

The Veteran's representative has submitted a November 2017 Appellant's Brief addressing the issue of entitlement to service connection for a left hip disability, including as secondary to the right knee condition.  The Board remanded that claim in January 2017 and the RO has not yet completed the development and readjudication of that claim and has not recertified that claim to the Board.  Therefore, the Board will not take jurisdiction of that claim at this time.  [The Board also remanded a claim for service connection for a psychiatric condition, and that was granted by the RO in an August 2017 decision.]



FINDING OF FACT

The Veteran and VA entered into a Stipulated Agreement pursuant to which the parties agreed that VA would assign a separate 10 percent disability rating under Diagnostic Code 5260 for the Veteran's service-connected chondromalacia of the right knee in addition to the currently assigned 10 percent rating under Diagnostic Code 5257.


CONCLUSION OF LAW

The criteria for a separate disability rating of 10 percent, but no higher, for chondromalacia of the right knee for limitation of extension under Diagnostic Code 5260 are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003 and 5256-5263 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

As noted above, this matter has returned to the Board upon the termination of an appeal to the CAVC pursuant to a Stipulated Agreement whereby VA has agreed to assign a separate 10 percent disability rating under Diagnostic Code 5260 for the Veteran's service-connected chondromalacia of the right knee in addition to the currently assigned 10 percent rating under Diagnostic Code 5257.  See 38 C.F.R. § 4.71a (containing Diagnostic Codes 5256-5263 relating to knee disabilities).  In exchange for the VA's concession, the Veteran agreed to terminate her appeal of this matter.  Therefore, the Board need not engage in detailed factual findings and legal analysis.  Rather, this matter has been resolved by agreement.

To summarize the basic facts of this matter, the Board has previously found (and incorporates that finding herein) that the Veteran's service-connected chondromalacia of the right knee manifested in flexion limited to 110 degrees; no limitation on extension; painful motion that results in some functional loss; pain on weight bearing; medial joint line tenderness; crepitus; recurrent, daily swelling; slow antalgic gait; use of knee sleeves and a cane; with functional impairments including limitations on activities requiring deep knee bends such as squatting, kneeling or crawling and limitations on climbing stairs or ladders.  See, generally, January 2017 Board Decision and Remand (discussing medical evidence and bases for the above findings of fact).

The Veteran currently has a 10 percent rating under Diagnostic Code 5257 for  right knee chondromalacia.  DC 5257 provides for 10, 20, or 30 percent ratings for recurrent subluxation or lateral instability that is, respectively, slight, moderate, or severe.

The Veteran has asserted and, under the Stipulated Agreement, VA has agreed that the Veteran is also entitled to a 10 percent rating under DC 5260.  As noted above, the Veteran has some limitation of flexion with some resulting functional loss due to painful motion.  Under DC 5260, a noncompensable evaluation is assigned for flexion limited to 60 degrees.  A 10 percent rating is assigned for flexion limited to 45 degrees.  A 20 percent rating is assigned for flexion limited to 30 degrees.  A 30 percent rating is assigned for flexion limited to 15 degrees.

VA has agreed that the medical facts in this case support separate 10 percent ratings under DCs 5257 and 5260 for the right knee condition.

Accordingly, the Board grants the Veteran's claim of entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia of the right knee.  Specifically, VA will assign a separate disability rating of 10 percent, but no higher, pursuant to DC 5260 for the right knee condition in addition to the currently assigned rating under DC 5257.

Because the claim is being granted pursuant to a Stipulated Agreement, no further discussion is necessary regarding the duties to notify and assist.


ORDER

Entitlement to a separate disability rating under DC 5260 of 10 percent, but no higher, for service-connected chondromalacia of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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