Citation Nr: 1006546 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 05-31 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected right knee disability. 2. Entitlement to service connection for right hip disorder, to include as secondary to service-connected right knee disability. 3. Entitlement to an increased rating for right knee chondromalacia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to December 1980 and from September 1981 to February 1989. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a March 2004 rating decision of the VA Regional Office in St. Louis, Missouri that denied an evaluation in excess of 10 percent for right knee chondromalacia and service connection for right ankle and right hip disorders, to include as secondary to the service-connected right knee disability. In January 2008, the Board remanded this claim for additional development. The case has returned and is ready for further review. The Board is also satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed right hip disorder or a currently diagnosed right ankle disorder. 2. The Veteran's right knee disorder is shown to result in complaints of pain, with occasional flare-ups by history, and X-ray findings of arthritis, with evidence of noncompensable ranges of motion shown and no objective evidence of more than slight recurrent instability or subluxation throughout the pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 3. The criteria for an increased rating for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in May 2003 and in March 2008. Combined, the letters fully addressed all notice elements for all issues on appeal. The May 2003 letter was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations of certain diseases during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA outpatient treatment records and private medical records. Next, VA examinations and specific medical opinions pertinent to the issues on appeal were obtained. See 38 C.F.R. § 3.159(c)(4) (2009). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate. Each examiner reviewed the claims file, described range of motion and discussed functional impairment. The examinations provided adequate basis for rating the Veteran's knee disorder. As to the service connection claims, the examinations were conducted after a review of the file and the examiners provided opinions regarding etiology. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible concerning his right knee disorder, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and for some disorders, may be presumed if manifested to a compensable degree within the first post service year. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service connection may be granted for a disability which is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A secondary service connection claim requires competent medical evidence to connect the asserted secondary condition to a service- connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310 and compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 and under the new regulation VA will not concede aggravation unless there is a baseline for the claimed disability shown by medical evidence created prior to the claimed aggravation. 71 Fed. Reg. 52,747 (Sept. 7, 2006) (now codified at 38 C.F.R. § 3.310). Although there was an amendment to § 3.310, the Veteran filed his claim prior to October 10, 2006, the effective date of the change. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The more liberal version is applicable to the appeal as the new version would have impermissible retroactive effect. See VA O.G.C. Prec. Op. No. 7-2003. A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In VAOPGCPREC 7-2003, VA's General Counsel held that when a new statute is enacted or a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3- 2000 (2000); 65 Fed. Reg. 33422(2000). The Federal Circuit has created a three-part test to determine whether a new law has prohibited retroactive effects: (1) "the nature and extent of the change of the law;" (2) "the degree of connection between the operation of the new rule and a relevant past event;" and (3) "familiar considerations of fair notice, reasonable reliance, and settled expectations." Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, under this test, a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, No. 2006-7023 (Fed. Cir. Jan. 7, 2008). The new version of the regulation imposes additional requirements to establish service connection on the basis of aggravation. Hence it appears to have retroactive effects, and the Board will apply the old version of 38 C.F.R. § 3.310. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). In this regard, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). A Right Hip Disorder and a Right Ankle Disorder The Evidence The Veteran's service treatment records show that in October 1976 the Veteran was treated for a right ankle sprain while playing football. X-rays were negative. He was found to have right ankle sprain. In April 1977, he was seen for blunt trauma to the right ankle. During his second period of service, at reenlistment in September 1977, examination of the feet was normal. No treatment for a right ankle complaint was noted during this period of service. The service treatment records for both periods of service do not show any complaint, diagnosis or treatment for a right hip disorder. After service, VA records show that on VA examination in February 1981, the Veteran had no ankle or hip complaints. The examiner noted that musculoskeletal examination was essentially negative throughout. The ankles and feet were noted to have full range of motion. There was no finding of any ankle or hip disorder. When he was examined by VA in May 1989, he reported having back pain which began in 1984. He stated that there was no injury. No hip or ankle problems were complained of or noted on examination. Low back pain was diagnosed. On VA examination in February 1999, there was no mention of right ankle or right hip complaints. VA outpatient treatment records dated from 2003 to 2008 have been reviewed and there is no showing of a confirmed diagnosis for right ankle disorder or a right hip disorder. In August 2002 the Veteran complained of right ankle pain. In October 2002, the Veteran complained of right ankle pain that started about one year prior. He denied any prior injury. On orthopedic consultation that same day, the examiner stated that he thought the Veteran had osteoarthritis. It was noted that the Veteran was walking with a gradually increased external rotation of his lower extremities which was noted to be probably hip related. It was noted that the Veteran had no significant symptom in the hip but the examiner reported that he thought the Veteran had osteoarthritis. It was also stated that the ankle films were not too remarkable but the signs and symptoms that the Veteran had would all point to osteoarthritis. The impression was, osteoarthritis. The X-ray report of the right ankle found fracture, dislocation or significant arthropathy. The impression was negative right ankle. The Veteran was examined by VA in December 2003. The claims file was reviewed. He denied any hip pain and reported that his right ankle had ached for the last year. Examination of the right ankle showed no abnormalities or deformities. He had some tenderness over the medial malleous with palpation. Motion was 0 degrees of dorsiflexion and 45 degrees of plantar flexion without pain. He had no tenderness upon palpation of the hip joint. Flexion was to 125 degrees and abduction was to 45 degrees. X-rays of the hip joints were found to be negative and X-rays of the right ankle were normal. The examiner stated that it was his opinion that the ankle problem is secondary to his hip problem due to his hip and not due to his knee. The Veteran was examined by VA in October 2009. The claims file was reviewed. The examiner noted that X-rays performed in conjunction with the examination showed a normal right ankle and a normal right hip. The Veteran was examined. The examiner stated that he thought it was more likely that the Veteran's right ankle and right hip pain are related to his age, the passage of time and probably are not related to the service-connected knee injury that he suffered. Discussion There is no evidence that the Veteran has either a right hip or a right ankle disability. It is well-settled that the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability, the first prong of a successful claim of service connection. In the absence of proof of a present disability, there is no valid claim presented. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Without evidence of a current disability, the Veteran's claims for service connection for a right hip disorder and a right ankle disorder on a direct or on a secondary basis must be denied. See also Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) ("Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."). As previously mentioned, the first requirement for any service connection claim is the existence of a current disability. In this regard, the claims file is completely devoid of any medical evidence indicating any current right ankle or right hip disorders. While on outpatient treatment dated in October 2002, the examiner stated that the Veteran had osteoarthritis, this was an indefinite finding in that the examiner stated that he "thought" the Veteran had osteoarthritis. It is noted that the X-rays of the right ankle were negative. Further, subsequent findings in the record do not confirm any diagnosis for either claimed disorder, and this includes X-rays taken. In December 2003, VA X-rays were normal for both claimed disorders, and the finding by the VA examiner referred only to an ankle and hip "problem." In October 2009, X-rays of the hip and the ankle were normal and the Veteran was noted to have right hip pain and right ankle pain. Additionally, the Veteran has failed to submit or identify any medical evidence showing a current diagnosis of, or treatment for, a right ankle or a right hip disorder. While he has complaints of pain, in this regard, the Board emphasizes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez- Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Moreover, although the Veteran is competent to state that he has pain, he is not competent to diagnose himself with a right ankle disorder or a right hip disorder, which requires a medical diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Thus, absent competent evidence of a current disability, service connection cannot be granted for an alleged disorder of the right ankle or of the right hip. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Evaluation Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218 (Vet. App. Nov. 19, 2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. 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. 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 claimant undertaking the motion. 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. 38 C.F.R. § 4.45. The Veteran seeks an increased evaluation for his service- connected right knee disorder. The Veteran contends that his service-connected disability is more disabling than reflected in the current rating percentage assigned. In this regard, lay statements are considered to be competent evidence when describing symptoms or an event. However, symptoms must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran's disability is currently rated as 10 percent disabling under DC 5257. According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of this joint, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Traumatic arthritis is rated analogous to degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). The Evidence VA outpatient treatment records show that the Veteran was seen in August 2002, status post arthroscopic surgery in September 1998. He reported that he had no complaint of knee pain but could hear it clicking. He noted that he was not bothered by it. He noted that he was playing golf three times a week. Examination showed ligamentous laxity in the right knee. The finding was, rule out loose bodies, right knee. X-rays of the right knee showed mild changes of osteoarthrosis. The record shows that the Veteran was informed by telephone that month that he had osteoarthritis of the right knee. At that time he denied having right knee instability. The Veteran was examined by VA in December 2003. The claims file was reviewed. The Veteran reported that sometimes his knee gives out on him and that he takes one Ibuprofen a day. He stated that he has periods of flare-up with his knee giving out on him bout four times per year and lasting for a couple of hours. It was noted that there was minimal limitation of motion and functional impairment during a period of flare-up. The Veteran did not use a crutch, cane or brace and it was noted that there was no dislocation recurrence, subluxation or inflammatory arthritis. Examination showed three 1-cm scars which were fully healed and were nontender to palpate. He had mild tenderness upon palpation over the medial joint line. Motion was as follows: 140 degrees of flexion and 0 degrees of extension. Strength was 5 out of 5. He had a negative McMurrays, negative valgus and varus stress test and a negative Lachman's. There was some crepitus with squatting. The finding was, status post meniscal tear of the right knee with mild degenerative arthritis. VA outpatient treatment records show treatment for right knee pain and complaints for popping and catching. (See, e.g., reports of November 2005 and December 2006). The Veteran was examined by VA in October 2009. The claims file was reviewed. The Veteran complained of right knee pain, limiting his ability to go up and down stairs, squat, and sometimes ambulating. X-rays were noted to show mild medial compartment osteoarthritic changed and mile osteoarthritic change involving the patellofemoral compartment. Examination of the knee showed no swelling, with motion from 3 degrees to 120 degrees. There was no ligamentous instability of the right knee. There was fatigability in the quadriceps mechanism evidenced by the fact that the Veteran could only do straight leg raises with a slight lag. Discussion Given the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for a left knee disability under Diagnostic Code 5257 for any period of time covered by the appeal. As noted above, Diagnostic Code 5257 assigns a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. It is noted that ligamentous laxity was noted on VA outpatient treatment on one occasion in August 2002. Although the Veteran reported subjective complaints of instability and giving way during the pendency of this appeal (see VA outpatient treatment record of July 2004), VA examinations are negative for any objective evidence of recurrent subluxation or lateral instability. The December 2003 VA examiner noted that the Lachman's test was negative. The October 20099 examiner found no evidence of instability or subluxation at that time. The one finding of laxity does not support a finding that a 20 percent rating is warranted under DC 5257. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of the currently assigned 10 percent under Diagnostic Code 5257 for any period of time covered by the appeal. The Board must also consider whether the evidence of record warrants a separate compensable rating for arthritis of the right knee. When a knee disorder is already rated under Diagnostic Code 5257, a separate rating may be assigned if the Veteran has limitation of motion which is at least noncompensable under Diagnostic Codes 5260 (limitation of flexion) or 5261 (limitation of extension). See 38 C.F.R. § 4.71a, Diagnostic Code 5003; VAOPGCPREC 23-97 (1997); VAOPGCPREC 09-98 (1998). Normal range of motion for the knee is to zero degrees on extension and to 140 degrees on flexion. See 38 C.F.R. § 4.71a, Plate II (2009). Under Diagnostic Code 5260, a noncompensable rating is warranted where flexion of the knee is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees, while a 20 percent rating is assigned where flexion is limited to 30 degrees. A 30 percent evaluation is warranted where flexion is limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating is warranted where extension of the knee is limited to five degrees. A 10 percent rating is warranted where extension is limited to 10 degrees, while a 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees, and a 40 percent rating is assigned where extension is limited to 30 degrees. A 50 percent rating is assigned where extension is limited to 45 degrees. Diagnostic Code 5003 requires that degenerative arthritis be established by x-ray findings. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x- ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board finds that the preponderance of the evidence does not support a finding that separate 10 percent disability ratings for limitation of flexion and/or limitation of extension of the right knee due to degenerative joint disease at any time during the appeal period. The Board acknowledges that there is objective evidence of record showing degenerative joint disease of the right knee. And while flexion is full and extension is shown to be limited to 3 degrees in October 2009, there is no showing that the Veteran has painful motion on VA examinations outlined above. Accordingly, the Board finds that the Veteran is not entitled to separate 10 percent disability ratings for limitation of flexion or limitation of extension of the right knee. See, Lichtenfels, supra; see also VAOPGCPREC 09-2004 (2004) (permitting separate evaluations based on limitation of flexion (Diagnostic Code 5260) and extension (Diagnostic Code 5261)). As motion is not limited either on flexion or extension to a compensable degree, a higher rating on that basis would not assist the Veteran. The findings are insufficient to warrant evaluations in excess of 10 percent for limitation of flexion or limitation of extension for any period of time covered by this appeal. The Board has also considered rating the Veteran's right knee disability under other pertinent diagnostic codes, but the bulk of these diagnostic codes are not applicable in the Veteran's case. For instance, Diagnostic Code 5256 is not for application in this case because there is no objective clinical evidence that the Veteran was diagnosed as having ankylosis. Diagnostic Code 5262 contemplates the rating of impairments of the tibia and fibula, while Diagnostic Code 5263 contemplates the rating of genu recurvatum (acquired, traumatic, with weakness and insecurity in weightbearing objectively demonstrated). There is no evidence of record to show that the Veteran was diagnosed with or treated for genu recurvatum or any impairments of the tibia or fibula. Thus, these diagnostic code provisions are not applicable in this case. The Board has considered whether Diagnostic Codes 5258 (dislocated semilunar cartilage) and 5259 (symptomatic removal of semilunar cartilage) are potentially applicable in the Veteran's case in light of the fact that he had a right knee surgery. These particular diagnostic codes provide disability ratings for semilunar dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint or for symptomatic residuals following the removal of semilunar dislocated cartilage. While the Veteran reported subjective reports of locking and pain, there is no objective clinical evidence to show that the Veteran was diagnosed with or treated for semilunar dislocated cartilage such that consideration would be warranted under Diagnostic Code 5258. Likewise, although the Veteran has symptomatic residuals following a surgical procedure, a 10 percent disability rating is the maximum schedular rating available under Diagnostic Code 5259. The Board has also considered whether there is additional functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca, supra. The Board acknowledges that the Veteran reported subjective symptoms of pain, locking, and popping, as occasional flare- ups and giving way. However, there is no objective indication that the Veteran's symptoms resulted in an additional functional loss due to flare-ups, fatigability, incoordination, or pain on repetitive movements. In December 2003, it was noted that there was minimal limitation of motion and functional impairment during flare-ups. And in October 2009, the only finding was fatigability. However, the Veteran's currently assigned disability rating for instability contemplates any functional loss he may experience. The Board notes that the Veteran has three 1 cm. scars on the right knee associated with arthroscopic surgery. In general evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The claimant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the medical evidence describes the Veteran's scars as fully healed and nontender, each measuring 1 cm. Thus, they are essentially asymptomatic and do not warrant additional compensation. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2009). After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim, and that an increased evaluation is not warranted at anytime during the appeal period. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule applies only when the positive and negative evidence renders a decision "too close to call"). Extraschedular In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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 those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected right knee disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disorder with the established criteria found in the rating shows that the rating criteria reasonably describe the Veteran's disability and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations. Additionally, there is no evidence of marked interference with employment. It is noted that the Veteran is retired. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Service connection for a right ankle disorder, to include as secondary to service-connected right knee disability is denied. Service connection for right hip disorder, to include as secondary to service-connected right knee disability is denied. An increased rating for right knee chondromalacia, currently evaluated as 10 percent disabling is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs