Citation Nr: 1007273 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 97-28 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the left knee from February 18, 1998, until October 6, 2004. 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right hip from February 18, 1998, until October 6, 2004. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant, Spouse, and Daughter ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1952 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on June 29, 2009, which vacated an October 2008 Board decision and remanded the issues remaining on appeal for additional development. The issues of entitlement to increased disability ratings after October 6, 2004, were not addressed by the Court and the October 2008 determinations as to these matters have become final. The Court vacated previous Board decisions in February 2008 and June 2002. The issues initially arose from an October 1998 rating decision by the White River Junction, Vermont, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, established service connection for degenerative joint disease of the left knee and degenerative arthritis of the left hip, as secondary to the residuals of an in-service left femur fracture. The RO assigned 10 percent disability ratings effective from February 18, 1998. A January 2005 rating decision granted an increased 20 percent rating for degenerative joint disease of the left knee effective from February 18, 1998. An August 2005 rating decision assigned an increased 40 percent rating for degenerative joint disease of the left knee effective from October 6, 2004, and an increased 30 percent rating for degenerative joint disease of the right hip effective from October 6, 2004. The Board also notes that in April 2006 the RO denied entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran and his attorney were notified of that determination, but did not appeal. The Court has held that entitlement to an extra- schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). The Court has recently held that a claim for TDIU is generally a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board finds that the April 2006 TDIU decision is final and that the present appeal is limited to the issues listed on the title page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Prior to October 6, 2004, the Veteran's degenerative joint disease of the left knee was manifested by X-ray evidence of arthritis with leg flexion that was painful at 90 degrees. 3. The persuasive evidence of record does not demonstrate any unusual circumstances related to the left knee disability beyond that contemplated by the presently assigned service- connected disability rating during the period from February 18, 1998, until October 6, 2004. 4. Prior to October 6, 2004, the Veteran's degenerative arthritis of the right hip was manifested by X-ray evidence of arthritis with hip flexion that was painful at 125 degrees. 5. The persuasive evidence of record does not demonstrate any unusual circumstances related to the right hip disability beyond that contemplated by the presently assigned service- connected disability rating during the period from February 18, 1998, until October 6, 2004. CONCLUSIONS OF LAW 1. Prior to October 6, 2004, the criteria for an initial rating in excess of 20 percent for degenerative joint disease of the left knee were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5003, 5010, 5260, 5261 (2009). 2. Prior to October 6, 2004, the criteria for an initial rating in excess of 10 percent for degenerative arthritis of the right hip were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5003, 5010, 5251, 5252, 5253 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the Veteran in letters from the RO dated in March 2003 and June 2004. Those letters, although subsequent to the initial adjudication of his claims, notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). Although the Veteran was not informed that the VCAA notice requirements applied to all elements of a claim, the Board finds that because of the decisions in this case any deficiency in the initial notice of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes VA treatment records dated during the period at issue and the Veteran has identified no existing evidence pertinent to these claims that require additional VA assistance. Further attempts to obtain additional evidence would be futile. The Board notes that VA records show the Veteran failed to report for scheduled examinations in September 2003, October 2003, and December 2003, and that the Court has held that VA's "duty to assist is not always a one-way street." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (The Court noted that if a claimant wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence.). The Veteran provided an excuse for his failure to appear for the December 2003 appointment and was subsequently afforded a VA examination in October 2004. There is no indication of VA fault in the delay in obtaining evidence in this case. The Court has held that 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). A "retrospective medical opinion may be necessary and helpful" in cases when the evidence is insufficient for an adequate determination. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The Board finds that a retrospective VA medical opinion would not be helpful in this case. As discussed in more detail below, the Veteran has provided inconsistent statements as to the severity of his left knee and right hip symptoms during the applicable period on appeal. His complaints of flare-ups of pain and dysfunction related to his service-connected disabilities during this period are not credible in light of his own statements and objective medical findings. He reports of left knee instability are unsupported by any objective medical evidence. In fact, at his February 1998 hearing he stated he was able to "walk around pretty good," and he indicated his back was his most disabling problem. At his July 1999 hearing he also stated his back disorder severely affected his ability to support himself. His statements as to increased symptoms are also inconsistent with reports he provided during VA treatment from May 2002 to January 2004. An examination during a flare up was not feasible in this case. See Voerth v. West, 13 Vet. App. 117 (1999). There is no reasonable possibility that an examination at this point in time could obtain evidence to substantiate the Veteran's claims as to any additional limitation of motion due to pain and dysfunction during the period at issue. It is significant to note that in its June 2002 order, by incorporating the terms of a joint motion for remand, the Court found the March 1998 VA examination did not adequately address the Veteran's complaints of pain and dysfunction. The Board subsequently remanded the case in June 2003 for additional development to include VA examinations to specifically address the Veteran's service-connected left knee and right hip disabilities. As noted above, the Veteran failed to appear for scheduled examinations in September 2003, October 2003, and December 2003 which hindered VA efforts to assist him in obtaining evidence concerning his claims. Based upon a comprehensive review of the complete record, the Board finds the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Increased Rating Claims Factual Background Service medical records show that the Veteran suffered a simple, comminuted fracture of the mid-shaft of the left femur in an automobile accident in service in February 1955. His injuries included lacerations of the left knee, which were sutured. He underwent open reduction of the left femur fracture and fixation with insertion of a Kuntscher nail and bone grafting. The bone donor site was the right ilium. In April 1955, after wound healing and physical therapy, he was returned to duty with a temporary profile for three months with restrictions on prolonged walking and marching with no jumping. It was noted he walked with a moderate limp favoring the left lower extremity. There was slight weakness of the gluteus medius on the left. Range of motion of the left knee was from 175 degrees extension to 75 degrees flexion. The Veteran was hospitalized again in late June 1955 with complaints of pain in the left hip area. Physical examination on admission revealed prominence of the nail protruding from the trochanter of the femur with bursal formation over the nail. During hospitalization it was determined that the nail should not be removed for fear the Veteran might fracture the femur, as the nail had been in place only five months. He was treated with a few weeks bed rest and his pain subsided. He was discharged to duty in late July 1955 and was given a profile change to prevent contact sports and strenuous activities. He was released from active military service in mid-August 1955. On VA orthopedic and surgical examination in January 1956 the Veteran reported that he was unable to bend his left leg fully and that his left thigh was weaker than the right. The diagnoses included a right iliac crest donor site bone graft scar; deformity of the left thigh, residual of fractured femur, with callus formation and insertion of intramedullary pin; post-operative scar left thigh; and scars left knee with minimal limitation of flexion (asymptomatic). A January 1956 VA genitourinary examiner noted that the Veteran walked with a very slight limp on the left. On VA orthopedic examination in June 1997, the Veteran reported aching in the left femur. It was noted he walked with a slightly atypical gait and that he stated he felt his left leg was slightly shorter with some muscle wasting in the left thigh. He also complained of some weakness in the right leg, which he stated had persisted for approximately a year after the accident in service. He complained of tenderness over the right iliac crest area and stated that the pain in his left thigh, back, and right hip had gradually worsened over the years. He reported he had occasional flare-ups of pain that were worst in his back and which occurred approximately once a week. He stated his flare-ups did not require bed rest, but that he was unable to perform "a normal day's work" during these episodes. He reported he took Ibuprofen and occasionally, in addition to this, an aspirin. An examination revealed an eight inch scar on the lateral left thigh that was neither tender nor fixed. There was an eight and half inch scar to the right hip where the donor bone graft was taken with no tenderness or fixation. The left leg was half an inch shorter than the right. Hip flexion was 80 degrees, bilaterally, and hip extension was 10 degrees, bilaterally. There were small bilateral knee effusions without heat or redness. It was noted that an X- ray examination had shown mild degenerative changes of the hips. The diagnoses included status post fracture and bone graft to the left femur resulting in a slight shortening of the left leg and osteoarthritis of the lumbosacral spine. At his February 1998 hearing the Veteran testified that he had back trouble all the time, but that he was able to "walk around pretty good." He stated he usually had to lean on the left to take the weight off his right leg because his back pain was on the right side. He stated that he had been unable to work for other employers for a full year because he used to get "colds" in his left knee. He stated he was currently self-employed as a carpenter which allowed him to pick his own work. He also reported that the bone-grafting scar on his right hip hurt and was tender. He stated that the area was irritated because it was under his belt. He testified that since service he had experienced problems with his left knee and that over the years it had given out on him two or three times. He stated the knee disorder had only occasionally caused him to stumble or fall. He also testified that he had pains in his hips if he sat too long. He reported that he no longer climbed ladders and that his hip and knee problems were worse in rainy, damp weather. He noted that he limped and was "semi-crippled" some days. He reported that he worked approximately 25 hours per week. On VA orthopedic examination in March 1998 the Veteran complained of constant left knee pain, which he described as a sharp ache. He stated it was associated with weakness, stiffness and mild swelling, fatigability, and lack of endurance. He reported he had instability, which was usually activity driven and usually occurred early in the morning when his left knee would give out on him secondary to pain. He stated this occurred usually once every two weeks. He denied any heat, redness, or locking of the left knee. He stated that he was unable to kneel, especially on concrete, and that he treated his left knee with an Ace wrap and pain relief medication. He reported flare-ups of left knee symptoms during which any movement of the knee hurt, which occurred after major activity and were aggravated by climbing stairs, climbing ladders, prolonged standing, prolonged driving, and changes in the weather. They occurred approximately once every two weeks. He reported he had not had any dislocation, recurrent subluxation, or any inflammatory arthritis of the left knee. He noted the effect on his usual occupation was that he was unable to work full time as a carpenter. He stated he worked odd jobs and that he had to limit his pleasurable activities, and that he had cut back on his manual labor activity around the house. He provided an example of cutting wood as something that he currently had great difficulty doing. Physical examination of the left knee revealed it was not swollen. There was tenderness over the prepatellar area, as well as the medial and lateral joint lines. There was a negative anterior drawer sign, negative posterior drawer sign, no laxity medially or laterally, and a negative McMurray's test. Range of motion studies revealed extension to 0 degrees and flexion to 90 degrees, limited by pain. The examiner noted that X-rays revealed mild to moderate degenerative joint disease of the left knee. A diagnosis of degenerative arthritis of the left knee was provided. The March 1998 examiner stated the Veteran's right hip was significant for a bone graft harvesting site with scar. It was noted that the area had been described as numb initially and that this numbness had resolved. The Veteran complained of right posterior hip pain and right medial thigh pain. He stated he was unsure as to any swelling and that he had no flares of the right hip pain, but that he had morning weakness and stiffness without heat, redness, instability, locking, or fatigability. It was noted that there was lack of endurance as the pain limited the veteran's ability to walk or perform physical activities. The examiner noted the scar at the bone graft site measured 20 centimeters and was located at the right iliac crest. The scar was keloid, but normal in texture. There was mild tenderness, but with normal sensation and no adherence, ulcerations, or elevation. There was depression of the scar with no major tissue loss underneath. There was right hip flexion from 0 to 125 degrees, adduction from 0 to 10 degrees with pain at that point, abduction from 0 to 45 degrees with pain at that point, internal rotation from 0 to 10 degrees with pain at that point, and external rotation from 0 to 35 degrees with pain at that point. X-rays revealed mild degenerative changes of the right hip. In an October 1998 addendum the examiner stated it was as likely as not that the Veteran's left femur fracture and leg length discrepancy had contributed to the left knee and right hip disorders secondary to altered gait. In his May 1999 VA Form 9 the Veteran stated that he experienced tremendous pain with a limp by the end of the day as a result of his right hip disorder. He stated that he had left knee pain due to temperature changes that kept him from walking. In correspondence dated in July 1999 he stated he experienced debilitating back pain that was severely affecting his ability to support his family. He also stated that his hip, knee, and leg disorders had severely limited his ability to provide for himself and his family during his most productive years. He stated his career as a carpenter had been compromised by an inability to work consistently. He stated he had "continually" taken time off to rest and recuperate. He also provided medical literature in support of his claims discussing osteoarthritis disabilities. At his July 1999 hearing the Veteran testified that after brief activity, such as bending and squatting up and down, he experienced severe pain. He stated that he was probably able to walk a quarter of a mile without pain and that his ability to walk was dependent on how he felt on a particular day. He reported that he was self-employed as a carpenter and that he never worked more than four hours a day. He stated his inability to work was due to his hip, his back, his knee, and all of his other disabilities. He stated his back was really messed up and that lower back pain was now severely affecting his ability to support his family. He testified that he was taking Motrin and aspirin and that he could not work more than four hours a day. VA treatment records dated in May 2002 show the Veteran had bilateral knee crepitance without effusion. There was full extension. A November 2002 report noted significant joint and back pain. There was no new weakness, sensory symptoms, or falls. An examination of the lower extremities revealed no clubbing, cyanosis, or edema. It was noted the Veteran's gait and station were normal. The diagnosis included osteoarthritis of the back. A May 2003 examiner noted he used Motrin and that he had a long history of joint pain. There was no swelling or redness and there was no specific joint that was more painful than the others. A January 2004 report included an assessment of degenerative joint disease. The examiner noted that the Veteran was tolerating discomfort with minimal medication. On VA examination in October 2004 the Veteran complained of left knee pain that he had learned to live with and estimated as three to ten on a ten point scale. He stated he experienced left knee weakness and stiffness with occasional swelling on overuse. He denied any heat, redness, or locking, but stated that he had marked instability and an inability to perform manual labor or go up and down stairs without severe pain and the knee giving way. He also complained of marked fatigue and a lack of endurance. He reported flares of severe pain for three days every month. He stated the effect of his left knee disorder on his usual occupation as a carpenter was significant. The examiner noted the left knee was tender and deformed. There was no laxity and anterior and posterior drawer signs were negative. McMurray's testing was negative, but painful. Active and passive extension was limited to -20 degrees and after five repetitions decreased to -30 degrees. Active flexion, passive flexion, and flexion after five repetitions was to 90 degrees. The Veteran grimaced throughout the examination and complained of pain. A diagnosis of left knee degenerative arthritis was provided. The October 2004 VA examination report also noted the Veteran complained of right hip pain estimated as two to three on a ten point scale. He stated he had only mild weakness and stiffness and denied having any swelling, heat, redness, instability, or locking. He complained of fatigue and lack of endurance with precipitating factors of changing weather and activities requiring walking, standing, or stair climbing. He denied any flare-ups over the last few years, but stated the disorder had limited his ability to perform certain jobs especially those requiring ladders. The examiner noted that X-rays revealed dystrophic calcification of the right ilium secondary to trauma and mild to moderate degenerative disease of the bilateral hip joints. There was tenderness to the right groin and slight tenderness over the greater trochanteric bursa. There was extremely limited hip range of motion due to pain. A diagnosis of degenerative arthritis of the right hip was provided. In correspondence dated in February 2005 the Veteran stated that he had been self-employed and that he was unable to work for other employers because of his injuries. He stated his disabilities had worsened over the years and that he had hardly worked at all over the past few years. He stated he had never worked a full year and estimated that he had worked on average three days per week. He provided a copy of a Social Security Administration (SSA) report noting his earnings record from 1951 to 2004. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2009). The absence of contemporaneous medical evidence may be weighed as a factor in determining the credibility of lay evidence, but lay evidence cannot be determined to lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Washington v. Nicholson, 19 Vet. App. 362 (2005). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2009). 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 2 0 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 1 0 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 501 0 Arthritis, due to trauma, substantiated by X-ray findings: Rate as limitation of motion of affected part, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2009) 525 1 Thigh, limitation of extension of: Extension limited to 5º 10 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2009). 525 2 Thigh, limitation of flexion of: Flexion limited to 10º 40 Flexion limited to 20º 30 Flexion limited to 30º 20 Flexion limited to 45º 10 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2009). 525 3 Thigh, impairment of: Limitation of abduction of, motion lost beyond 10º 20 Limitation of adduction of, cannot cross legs 10 Limitation of rotation of, cannot toe-out more than 15º, affected leg 10 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2009). 38 C.F.R. § 4.71, Plate II (2009). 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2009). 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2009). 5275 Bones, of the lower extremity, shortening of: Over 4 inches (1 0.2 cms.) 60 3-1/2 to 4 inches (8.9 cms. to 10.2 cms.) 50 3 to 3-1/2 inches (7.6 cms. to 8.9 cms.) 40 2-1/2 to 3 inches (6.4 cms. to 7.6 cms.) 30 2 to 2-1/2 inches (5.1 cms. to 6.4 cms.) 20 1-1/4 to 2 inches (3.2 cms. to 5.1 cms.) 10 Note: Measure both lower extremities from anterior superior spine of the ilium to the internal malleolus of the tibia. Not to be combined with other ratings for fracture or faulty union in the same extremity. Shortening of more than 3-1/2 inches also entitled to special monthly compensation. 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2009). Normal knee flexion and extension. 38 C.F.R. § 4.71, Plate II (2009). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 (2009). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2009). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). VA General Counsel precedent opinion has held that a separate rating under Code 5010 for traumatic arthritis was permitted when a Veteran who was rated under Code 5257 for other knee impairment (due to lateral instability or recurrent subluxation) also demonstrated additional disability with evidence of traumatic arthritis and a limitation of motion. See VAOPGCPREC 23-97 (Jul. 1, 1997). Separate ratings are also permissible for limitation of flexion and limitation of extension of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Court has held that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). A separate rating, however, must be based upon additional disability. For example, when a knee disorder is already rated under Code 5257 the Veteran must also have limitation of motion under Code 5260 or Code 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero- percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). A. Left Knee Disability In this case, the Veteran contends that his service-connected degenerative joint disease of the left knee warrants an initial rating in excess of the currently assigned 20 percent rating for the period from February 18, 1998, until October 6, 2004. He has asserted, in essence, that prior determinations of his claim failed to adequately consider his additional disability due to pain and dysfunction during symptom flare-ups. As an initial matter, the Board finds the Veteran's statements as to his symptom manifestations during flare-ups over the period from February 18, 1998, until October 6, 2004, are too inconsistent with his other statements as to his physical impairment and with the objective medical findings to be of any probative value. The Board notes that a June 1997 VA orthopedic examination report noted his complaints of pain including to the left thigh without indication of any specific left knee disorder. An examination at that time revealed small bilateral knee effusions without heat or redness. In testimony provided in February 1998 the Veteran stated that he had back trouble all the time, but that he was able to "walk around pretty good." He stated he used to get "colds" in his left knee and that over the years it had given out on him two or three times, but he reported no current symptom manifestations. On VA orthopedic examination in March 1998 he complained of constant left knee pain associated with weakness, stiffness and mild swelling, fatigability, and lack of endurance. He reported he had flare-ups of left knee symptoms during which any movement of the knee hurt, which occurred after major activity approximately once every two weeks. He also reported that he had instability that usually occurred once every two weeks, which was inconsistent with his testimony in February 1998. The examiner noted the left knee was not swollen, but that there was tenderness over the prepatellar area and the medial and lateral joint lines. It was noted, however, that upon examination there was no medial or lateral laxity and that anterior drawer sign, posterior drawer sign, and McMurray's testing were negative. In a May 1999 VA Form 9 the Veteran stated only that that he experienced left knee pain due to temperature changes that kept him from walking. At his July 1999 hearing he testified that after brief activity, such as bending and squatting up and down, he experienced severe pain, but he also stated that he was probably able to walk a quarter of a mile without any pain. VA treatment records dated in May 2002 show the Veteran had bilateral knee crepitance without effusion and that there was full extension. A November 2002 report noted significant joint and back pain, but that he reported no new weakness, sensory symptoms, or falls. An examination of the lower extremities at that time revealed no clubbing, cyanosis, or edema, but apparently no other notable left knee symptoms. The examiner reported the Veteran's gait and station were normal. A May 2003 report noted a long history of joint pain, but that there was no swelling or redness and no specific joint was more painful than the others. A January 2004 report noted that the Veteran was tolerating discomfort with minimal medication, but again with apparently no other notable left knee symptoms. On VA examination in October 2004 the Veteran complained of left knee pain and left knee weakness and stiffness with occasional swelling on overuse. He stated that he had marked instability, marked fatigue, and a lack of endurance with flares of severe pain for three days every month. The examiner noted the left knee at that time was tender and deformed, but that there was no evidence of laxity. There was decreased leg extension after five repetitions; however, flexion was not similarly affected. Although during VA examinations in March 1998 and October 2004 the Veteran complained of weakness, stiffness, fatigability, and lack of endurance, he apparently did not report such symptoms during VA treatment in May 2002, November 2002, May 2003, or January 2004. Nor were these symptoms demonstrated by objective medical evidence at any time during the period from February 18, 1998, until October 6, 2004. The weight and probative value of the Veteran's statements concerning subjective symptoms during flare-ups manifested by weakness, stiffness, fatigability, and lack of endurance are diminished in light of their own inherent characteristics and their relationship to other items of evidence. See Madden, 125 F.3d 1477. The Board finds the Veteran's statements as to knee instability and additional pain and dysfunction during flare-ups lack credibility because they are inconsistent with his other statements of record and with the objective medical findings. Based upon the evidence of record, the Board finds that prior to October 6, 2004, the Veteran's degenerative joint disease of the left knee was manifested by X-ray evidence of arthritis with leg flexion that was painful at 90 degrees. A review of the medical evidence, as discussed above, shows that prior to the October 2004 VA examination there was full extension of the left knee and that flexion of the left knee was limited to 90 degrees by pain. In order to warrant a rating in excess of the currently assigned 20 percent rating leg flexion must be limited to 15 degrees, including as due to pain and dysfunction, or extension must be limited to 20 degrees. When there is X-ray evidence of degenerative joint disease and noncompensable limitation of motion a 10 percent rating is warranted. There is no credible evidence of any additional knee impairment due to symptoms such as weakness, stiffness, fatigue, or lack of endurance. The Veteran's statements without any supporting evidence are considered to be of no probative value. The Board finds no basis for the assignment of a rating in excess of 20 percent for the left knee prior to the October 2004 examination. The Board also finds that no higher rating is warranted based on the Veteran's report of left knee instability. At his February 1998 hearing he testified that his left knee had given out on him only two or three times since his initial injury, but that at his March 1998 VA examination he reported left knee instability about once every two weeks. The March 1998 and October 2004 examinations found no evidence of instability. Anterior drawer, posterior drawer, and McMurray's signs were negative. A November 2002 VA treatment report noted the Veteran reported no falls and the examiner noted he walked with a normal gait. The record includes no evidence of dislocation, removal the semilunar cartilage, ankylosis, impairment of the tibia or fibula, or genu recurvatum to warrant any higher alternative or separate disability ratings. Therefore, the claim for a schedular rating in excess of 20 percent for degenerative joint disease of the left knee from February 18, 1998, until October 6, 2004, must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization, related to the service-connected left knee disorder that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The persuasive evidence of record does not demonstrate any unusual circumstances related to the left knee disability beyond that contemplated by the presently assigned service-connected disability rating effective during the period from February 18, 1998, until October 6, 2004. The service-connected left knee disorder is adequately rated under the available schedular criteria and the objective findings of physical impairment are well documented. The Veteran asserted that his left knee has interfered with his employment, and stated that he has not been able to maintain full-time employment as a carpenter because of this disorder. At his July 1999 hearing he testified that he was not working more than four hours a day, and when questioned further indicated that was because of his hip, his back, his knees, and all of his disabilities. He provided no supporting or independent evidence of the amount of time lost from work because of his left knee disability. Nor has he offered any specifics that could be independently corroborated. He testified that he had undergone an employment examination in about 1959, but he has provided no information that would permit a search for the report of that examination. He has not provided evidence that shows an exceptional or unusual disability picture due exclusively to his service-connected disability that would render impractical the application of the regular schedular rating standards required for extraschedular consideration. Although he provided a copy of his SSA earnings report as evidence of his diminished earnings over the years, the Court has held that when VA finds the criteria in the rating schedule adequately corresponds to the symptomatology and severity of a claimant's disability, then § 3.321(b)(1) does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115-117 (2008) The Board finds the overall evidence of record in this case is not indicative of a marked interference with employment as a result of the service-connected left knee disability. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim for an increased rating. B. Right Hip Disability Based upon the evidence of record, the Board finds that prior to October 6, 2004, the Veteran's degenerative arthritis of the right hip was manifested by X-ray evidence of arthritis with hip flexion that was painful at 125 degrees. Range of motion of the right hip and thigh upon VA examination in March 1998 was not compensable rating in terms of extension, flexion, abduction, adduction, or rotation. There was right hip flexion from 0 to 125 degrees, adduction from 0 to 10 degrees with pain at that point, abduction from 0 to 45 degrees with pain at that point, internal rotation from 0 to 10 degrees with pain at that point, and external rotation from 0 to 35 degrees with pain at that point. A May 2003 examiner noted he had a long history of joint pain, but that there was no specific joint that was more painful than the others. On VA examination in October 2004 there was extremely limited hip range of motion due to pain. There is no credible evidence of increased disability as a result of his right hip arthritis during a period of symptom flare-up. In fact, the Veteran denied any flare-ups of pain on VA examinations in March 1998 and October 2004. His complaints of mild weakness and stiffness related to his right hip with fatigue and lack of endurance with precipitating factors of changing weather and activities requiring walking, standing, or stair climbing are considered to be adequately rated under the present evaluation. Therefore, entitlement to a rating in excess of 10 percent for degenerative arthritis of the right hip must be denied. The persuasive evidence of record does not demonstrate any unusual circumstances related to the right hip disability beyond that contemplated by the presently assigned service- connected disability rating during the period from February 18, 1998, until October 6, 2004. The service-connected right hip disorder is adequately rated under the available schedular criteria and the objective findings of physical impairment are well documented. The Veteran's statements asserting employment problems associated with his right hip disorder are inconsistent with his statements indicating his back was most disabling and are not probative of a marked interference with employment. Therefore, referral under 38 C.F.R. § 3.321 is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The preponderance of the evidence is against the claim for an increased rating. ORDER Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the left knee from February 18, 1998, until October 6, 2004, is denied. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right hip from February 18, 1998, until October 6, 2004, is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs