Citation Nr: 1108703 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 09-01 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial rating in excess of 10 percent for degenerative changes of the left knee, status post anterior cruciate ligament surgical repair. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran served on active duty from December 2000 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2007 by the Department of Veterans Affairs (VA), Regional Office (RO), in Salt Lake City, Utah. Jurisdiction of the Veteran's claims file has subsequently been transferred to the RO in Portland, Oregon. The April 2007 rating decision granted service connection for degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, and left knee scars and assigned an initial 10 percent rating for each disability, effective January 26, 2007. Thereafter, the Veteran entered a notice of disagreement as to the propriety of the assigned initial ratings and a statement of the case was issued in December 2008. However, in his January 2009 substantive appeal (VA Form 9), the Veteran limited his appeal to the propriety of the initially assigned rating for his degenerative changes of the left knee, status post anterior cruciate ligament surgical repair. Therefore, with respect to the issue of the propriety of the initially assigned rating for the Veteran's left knee scars, he did not perfect his appeal in a timely manner following the issuance of the December 2008 statement of the case. See 38 C.F.R. § 20.202 (2010). Inasmuch as the RO has not taken any action to indicate to the Veteran that this issue remains on appeal and it took steps to close the appeal (see certification of Appeal [VA Form 8]), the requirement that there be a substantive appeal is not waived. The facts of this case are clearly distinguished from the United States Court of Appeals for Veterans Claims (Court)'s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009), because in this appeal the Veteran was not mislead by actions on the part of VA into believing that he had perfected an appeal as to this issue. Therefore, the issue of the propriety of the initially assigned rating for the Veteran's left knee scars is not properly before the Board. The Veteran and his friend provided testimony before the undersigned Veterans Law Judge sitting at the RO in December 2010; a transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, is manifested by flexion limited to 112 degrees and extension limited to 6 degrees with an additional 10 to 15 degrees loss of motion as a result of pain, weakness, and fatigability due to increased repetitive movements and flare-ups; crepitus; tenderness; and pain, without objective evidence of additional symptoms as a result of dislocated semilunar cartilage or removal of semilunar cartilage; ankylosis; impairment of the tibia or fibula; or genu recurvatum. 2. For the entire appeal period, the Veteran's degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, results in no more than slight lateral instability. 3. The Veteran is in receipt of a separate 10 percent rating for symptomatic scarring of the left knee. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating in excess of 10 percent for degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5003 (2010). 2. For the entire appeal period, the criteria for a separate 10 percent rating, but no higher, for lateral instability of the left knee has been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his left knee disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his left knee disability was granted and an initial rating was assigned in the April 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records and post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the Board observes that he indicated at his December 2010 hearing that he was not currently being treated for his left knee disability. The Veteran has also been afforded VA examinations in November 2006 and December 2009 in order adjudicate his initial rating claim. The Board finds these examinations to be adequate in order to evaluate the Veteran's left knee disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Moreover, the Board observes that the findings as reflected at the December 2009 VA examination are consistent with those reported at the Veteran's December 2010 Board hearing. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. All benefit of the doubt will be resolved in the appellant'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. It is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca, supra. The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260-5003. At his December 2010 Board hearing and in documents of record, the Veteran contends that he is entitled to a higher initial rating because such disability is more severe than the currently assigned rating. Therefore, he argues that an initial rating in excess of 10 percent is warranted for his left knee disability. 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. The hyphenated diagnostic code in this case indicates that limitation of flexion under Diagnostic Code 5260 is the service-connected disorder and degenerative arthritis under Diagnostic Code 5003 is a residual condition. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). For the reasons discussed below, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, under Diagnostic Code 5260-5003; however, he is entitled to a separate initial 10 percent rating, but no higher, in contemplation of slight lateral instability of his left knee. In this regard, the Board finds that the Veteran's left knee disability is manifested by flexion limited to 112 degrees and extension limited to 6 degrees with an additional 10 to 15 degrees loss of motion as a result of pain, weakness, and fatigability due to increased repetitive movements and flare-ups; crepitus; tenderness; and pain, without objective evidence of additional symptoms as a result of dislocated semilunar cartilage or removal of semilunar cartilage; ankylosis; impairment of the tibia or fibula; or genu recurvatum. Additionally, the Board finds that his left knee disability results in no more than slight lateral instability. Specifically, at a November 2006 VA examination, it was noted that the Veteran had two knee surgeries during military service. Specifically, in March 2004, an MRI revealed a complete tear of the anterior cruciate ligament and a tear of the lateral meniscus. Thereafter, in September 2004 the Veteran had surgery to rebuild the anterior cruciate ligament. Subsequently, a June 2005 MRI revealed disruption of the anterior cruciate ligament graft. As such, in March 2006, the Veteran had a second left knee surgery in order to rebuild the anterior cruciate ligament. At the time of the November 2006 VA examination, the Veteran indicated that his left knee felt stable, but reported pain. The left knee did not give-way or lock-up. While there was left knee edema post-surgery, there was none at the time of the VA examination. There was no increased heat or skin color change. The Veteran indicated that the left knee felt weak when he exercised and had easy fatigability. He heard occasional crepitations from the lateral aspect of the left knee. Upon physical examination, there was no deformity, edema, effusion, increased heat, or redness of the left knee. There was no varus/valgus laxity. There was no pain on palpation over the medial joint line, lateral joint line, quadriceps tendon, patellar tendon, or popliteal area tendons. Anterior drawer, Lachman, and McMurray tests were negative. The patella was not lax. Crepitations were present with flexion. Range of motion testing revealed flexion to 115 degrees without pain and extension to zero degrees without pain. There was no additional loss of joint function because of pain, fatigue, weakness, lack of endurance, or incoordination. X-rays revealed minimal degenerative changes. The examiner diagnosed status post surgical repair twice with residual scars of the left knee. VA treatment records dated from October 2007 to May 2008 reveal that, in October 2007, an X-ray showed mild medial and minimal lateral compartment degenerative joint disease. Also in October 2007, it was noted that the Veteran complained of left knee instability since March 2006. He indicated that his knee had been unstable since his second surgery. He reported that such buckled and gave out with certain movements that were worse on uneven ground. He indicated that he had three to four episodes of his knee giving out since March 2006. He denied any swelling or locking. On physical examination, there was no local joint effusion, errythmia, or ecchymosis. There was no appreciable varus valgus deformity of the knee with ambulation. There was mild tenderness to palpation of the lateral joint line. The Veteran had active and passive range of motion of the left knee from 115 degrees of flexion to zero degrees of extension. Laxity was noted on Lachman's test, but the Veteran's treatment provider was unable to discern a firm endpoint. The Veteran's left knee was stable to varus and valgus stress. McMurray's test revealed some crepitus laterally, but medial/lateral examination was not painful. The assessment was status post left anterior cruciate ligament reconstruction times two with continued instability. A November 2007 MRI showed a tear of the anterior horn of the lateral meniscus and a tear of the posterior horn of the lateral meniscus in its peripheral portion. In December 2007, the Veteran again complained of left knee instability. On examination, he had firm endpoints with anterior posterior drawer testing and Lachman's test. The Veteran's treatment provider indicated that he did not think the Veteran's anterior cruciate ligament was incompetent, rather that he had meniscus pathology or maybe a cartilage flap or tear in within the knee joint, which contributed to his symptoms of popping and give way instability. He further noted that the Veteran had a little bit of laxity, but with definite endpoint and appeared stable. Subsequent treatment records indicate that the Veteran was scheduled for additional left knee surgery due to derangement of the meniscus in June 2008; however, he did not keep his pre-operative appointments and, at his December 2010 Board hearing reported that he only had two knee surgeries, in 2004 and 2006, and was not currently receiving treatment for his left knee. At a December 2009 VA examination, the Veteran complained of constant pain in the prior six months with flare-ups, swelling, and giving out of the left knee. Objective examination revealed that there was moderate tenderness to palpation on the medial joint line and mildly tender to palpation in the popliteal fossa. He was nontender in the patella or lateral joint line. There was a small effusion. Varus and valgus stress at zero and 30 degrees revealed intact ligaments bilaterally. Lachman's test was positive with no firm endpoint noted at a greater than five millimeter excursion. McMurray's sign revealed pain, but no crepitus or clicking. The Veteran had 6 degrees of extension and 112 degrees times three with pain noted throughout range of motion. The examiner stated that he expected the Veteran to lose another 10 to 15 degrees of overall range of motion of the left knee due to pain, weakness, fatigability, but no loss of coordination, due to increased repetitive movements and flare-ups. He also noted that the Veteran's instability of the left knee was perceived by the Veteran and noted on Lachman's test on examination. X-rays of October 2007 revealed a minimal progression of degenerative changes. The impression was minimal increase in mild degenerative changes and stable post-operative changes. The Board initially notes that the Veteran has degenerative arthritis, confirmed by X-ray findings and, as such, has been evaluated, in part, under Diagnostic Code 5003. As indicated previously, Diagnostic Code 5003 provides that arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved. When, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, such disability may be rated under Diagnostic Code 5003. In the instant case, as the Veteran does not meet the criteria for a 10 percent rating under Diagnostic Code 5260 or 5261 pertinent to limitation of flexion and extension, respectively, the Board has considered whether he is entitled to a higher rating under Diagnostic Code 5003. The Board notes that, under Diagnostic Code 5003, a 20 percent rating may be assigned where there is X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes. However, in the instant case, only one major joint, the Veteran's left knee, is involved. As such, a 20 percent rating under DC 5003 is not warranted. However, based on such rating criteria, the Veteran has been assigned a 10 percent rating in contemplation of arthritis with painful, limited motion. As such, the Board has considered whether the Veteran is entitled to a higher or separate rating under alternate Diagnostic Codes. Under Diagnostic Code 5260, a zero percent evaluation is assigned where flexion of the leg is limited to 60 degrees. Flexion must be limited to 45, 30, or 15 degrees in order to warrant a 10, 20, or 30 percent rating, respectively. However, the evidence shows that, during the course of the appeal, the Veteran's flexion has been limited to 112 degrees at most, as exhibited at the December 2009 VA examination. In this regard, prior examinations noted in November 2006 and October 2007 revealed flexion to 115 degrees without any additional loss of range of motion due to pain. The Board notes that the December 2009 VA examiner indicated that he expected the Veteran to lose an additional 10 to 15 degrees of motion as a result of pain, weakness, and fatigability due to increased repetitive movements and flare-ups. See DeLuca, supra. However, even in contemplation of a 10 to 15 degree loss of overall range of motion of the Veteran's left knee, there is no indication that his limitation of flexion more nearly approximates a criteria for a 10 percent rating. Id. Therefore, the Board finds that the Veteran's left knee disability does not result in a compensable rating under Diagnostic Code 5260. Diagnostic Code 5261 provides for a noncompensable evaluation where extension of the leg is limited to 5 degrees. Extension must be limited to 10, 15, 20, 30, or 45 degrees in order to warrant a 10, 20, 30, 40, or 50 percent rating, respectively. The evidence of record fails to demonstrate any limitation of extension beyond 6 degrees, as range of motion testing during the entire appeal period consistently revealed extension to zero degrees, except at the December 2009 VA examination where he had extension to 6 degrees. As indicated in the preceding paragraph, the December 2009 VA examiner indicated that he expected the Veteran to lose an additional 10 to 15 degrees of motion as a result of pain, weakness, and fatigability due to increased repetitive movements and flare-ups. See DeLuca, supra. However, even in contemplation of a 10 to 15 degree loss of overall range of motion of the Veteran's left knee, there is no indication that his limitation of extension more nearly approximates a criteria for a 10 percent rating. Id. Therefore, the Board finds that the Veteran's left knee disability does not result in a compensable rating under Diagnostic Code 5261. However, assuming arguendo that the Veteran's additional loss of 10 to 15 degrees of overall range of motion of his left knee as a result of pain, weakness, and fatigability due to increased repetitive movements and flare-ups results in a compensable rating under either Diagnostic Code 5260 or 5261, there is no evidence that such results in a compensable rating under both Diagnostic Code 5260 and 5261. In this regard, with respect to limitation of flexion, the Veteran would have to demonstrate limitation to 45 degrees in order to warrant a compensable rating under Diagnostic Code 5260. However, even in contemplation of the additional loss of motion, he does not begin to approach such limitation of flexion. Therefore, if the additional loss of motion results in a compensable rating under Diagnostic Code 5261 pertinent to limitation of extension, the Veteran is already in receipt of a10 percent rating for painful, limited motion with arthritis of the left knee and his additional loss of 10 to 15 degrees of overall range of motion is contemplated in such rating. See 38 C.F.R. § 4.14; Esteban, supra. Additionally, as the Veteran does not meet the criteria for a compensable rating under Diagnostic Code 5260, he is not entitled to separate ratings under Diagnostic Codes 5260 and 5261. Thus, VAOPGCPREC 9-04 is not applicable. The Board has further considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5257. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. In this regard, the evidence reflects that, while the Veteran's left knee was stable on examination in November 2006, the remainder of his treatment records, as well as on VA examination in December 2009, reveal slight lateral instability. Specifically, October 2007 and December 2007 VA treatment records as well as the December 2009 VA examination revealed laxity on Lachman's test. Additionally, in light of the Veteran's complaints of instability dating back to March 2006 and his, as well as his friend's, competent and credible hearing testimony on the matter, the Board resolves reasonable doubt in his favor and finds that, for the entire appeal period, his left knee has resulted in no more than slight lateral instability. In this regard, the Veteran reported in October 2007 that his left knee had given out only three to four times in the prior year and a half. Additionally, in October 2007, his left knee was stable to varus and valgus stress on examination and, in December 2007, had firm endpoints. Moreover, his treatment provider indicated that the Veteran had a little bit of laxity, but with definite endpoints and appeared stable. Moreover, on examination in December 2009, varus and valgus stress revealed intact ligaments bilaterally. Therefore, the Board finds that the Veteran's lateral instability of the left knee results in no more than slight impairment. As such, for the entire appeal period, the Veteran is entitled to a separate initial 10 percent rating, but no higher, for lateral instability of the left knee under Diagnostic Code 5257. The record reflects that, as noted at the November 2006 VA examination, the Veteran had two knee surgeries during military service, to include as a result of a tear of the lateral meniscus. Additionally, VA treatment records reflect that the Veteran was being treated for derangement of the meniscus; however, such has not been surgically repaired. Therefore, the Board has considered whether he is entitled to a higher or separate rating for his left knee disability under Diagnostic Codes relevant to removal or dislocation of semilunar cartilage. Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. The Board acknowledges the Veteran's left knee to be symptomatic; however, such symptoms consisting primarily of painful, limited motion and instability are included in his separate 10 percent ratings assigned under Diagnostic Codes 5260-5003 and 5257, respectively. Moreover, pursuant to VAOPGCPREC 9-98, limitation of motion is contemplated in Diagnostic Code 5259, pertinent to the removal of the semilunar cartilage or meniscus. The opinion finds that such removal may resolve restriction of movement caused by tears and displacements of the menisci; however, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, the opinion states that limitation of motion is a relevant consideration under Diagnostic Code 5259. As such, to assign a separate 10 percent rating under Diagnostic Code 5259 would thus doubly compensate the Veteran for the same symptoms already considered and violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban, supra. Therefore, the Board finds that the Veteran is not entitled to a separate rating under Diagnostic Code 5259. The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. While the Veteran had derangement of the meniscus noted in December 2007, there is no evidence of frequent episodes of "locking," pain, and effusion into the joint. In this regard, the Veteran denied that his knee locked-up in November 2006 and October 2007. Additionally, such records indicated that there was no effusion and, in December 2009, it was noted that the Veteran only had small effusion. Moreover, such symptomatology, as well as the Veteran's complaints of pain, are contemplated in his separate 10 percent ratings assigned under Diagnostic Codes 5260-5003 and 5257. Therefore, to assign a separate 20 percent rating under Diagnostic Code 5258 would thus doubly compensate the Veteran for the same symptoms already considered and violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban, supra. Therefore, the Board finds that the Veteran is not entitled to a separate rating under Diagnostic Code 5258. Additionally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively. The Board also notes that, as the Veteran had surgery on his left knee, he has residual scarring. Specifically, on examination in November 2006, it was noted that the Veteran had two parallel longitudinal surgical scars distal to the left patella on the medial aspect, which were 4.5 centimeters by 1.5 centimeters and 3.5 centimeters by 1 centimeter. The more recent smaller surgical scar was hyperpigmented. The scars were not tender and there were no other pathologic characteristics. The Veteran also had 8 arthroscopy scars on his left knee, which were each .6 centimeters by .3 centimeters. There was no tenderness. Four of the newer scars were hyperpigmented, tender, and slightly depressed. There were no other pathologic characteristics. The four older scars had normal color, no tenderness, and no other pathologic characteristics. The examiner noted that such scars were not disfiguring. An October 2007 VA treatment record reflects that the Veteran's scars were well healed on examination. In December 2009, objective examination revealed a vertical scar just below the patella consistent with patellar anterior cruciate ligament graft reconstruction. It was noted that such was nonadherent and not tender to palpation. Therefore, in light of the Veteran's symptomatic residual scarring, he has been assigned a separate 10 percent rating under Diagnostic Code 7804 pertinent to superficial scars that are painful on examination. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected left knee disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left knee disability with the established criteria found in the rating schedule. The Board finds that the Veteran's left knee symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms of his left knee disability that are not addressed by the rating schedule. Moreover, to the extent that the Veteran's left knee disability may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran is employed full-time and has not alleged that he was unemployable during the course of the appeal. Therefore, as there is no evidence of unemployability, a TDIU is not raised by the record. In sum, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for degenerative changes of the left knee, status post anterior cruciate ligament surgical repair. The Board further concludes that he is entitled to a separate initial 10 percent rating, but no higher, for lateral instability of the left knee. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for initial ratings in excess of 10 percent for his left knee disability. In denying initial ratings in excess of 10 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 10 percent for degenerative changes of the left knee, status post anterior cruciate ligament surgical repair, is denied. A separate initial 10 percent rating, but no higher, for lateral instability of the left knee is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs