Citation Nr: 1034080 Decision Date: 09/10/10 Archive Date: 09/21/10 DOCKET NO. 05-33 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a left knee disability. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from June 1980 to October 1990. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an October 2008 decision, the Board granted increased ratings for the appellant's service-connected right and left hallux valgus disabilities. The Board also denied a rating in excess of 20 percent for the appellant's service-connected left knee disability and a rating in excess of 10 percent for his service- connected right knee disability. The appellant appealed the Board's October 2008 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in August 2009, the appellant's then-attorney, Glenn R. Bergmann, of Bergmann & Moore, LLC, and a representative of VA's Office of General Counsel filed a joint motion for partial remand. In an August 2009 order, the Court granted the motion, vacated the portion of the Board's October 2008 decision denying a rating in excess of 20 percent for the appellant's service-connected left knee disability and a rating in excess of 10 percent for his service- connected right knee disability, and remanded those issues to the Board for compliance with the instructions in the August 2009 joint motion. The appeal as to the remaining portion of the Board's decision was dismissed. In February 2010, the Board remanded the matter to the RO for additional evidentiary development. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Neither the appellant nor his representative has argued otherwise. Indeed, the appellant's representative concedes that the RO has "complied with the stipulations of the remand decision to the best of its ability." See May 2010 written arguments. Also in its February 2010 remand, the Board noted that in July 2004, the appellant had submitted a notice of disagreement with the effective date assigned by the RO for the award of service connection for his right knee disability. Pursuant to the Board's remand instructions, in May 2010, the RO issued a Statement of the Case addressing this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The record on appeal contains no indication that the appellant thereafter perfected an appeal of this issue. Thus, this matter is not in appellant status. FINDINGS OF FACT 1. The appellant's left knee disability is manifested by subjective complaints of pain, functional loss, and instability, with objective evidence of full extension and flexion limited to no more than 110 degrees; there is no objective medical evidence of lateral instability or recurrent subluxation. 2. Since the award of service connection the appellant's right knee disability has been manifested by subjective complaints of pain and functional loss, with objective evidence of full extension and flexion limited to no more than 120 degrees; there is no objective medical evidence of lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5261 (2009). 2. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256 to 5261 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In July 2003 and October 2003 letters issued prior to the initial decision on the claims, VA notified the appellant of the information and evidence needed to substantiate and complete his claims for an increased rating for a left knee disability and service connection for a right knee disability, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009). Additional information was subsequently provided to the appellant in a November 2004 letter and in the April 2008 Supplemental Statement of the Case, including the additional notification requirements imposed by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO has since reconsidered the appellant's claims, most recently in the May 2010 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board further notes that one of the issues in appellate status stems from the appellant's appeal of the initial rating assigned by the RO following the award of service connection for a psychiatric disability. The Court has held that once service connection is granted, the claim has been substantiated, and further VCAA notice is generally not required. Dingess/Hartman, 19 Vet. App. at 490 ("[O]nce a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104, 7105 and 38 C.F.R. § 3.103 are for application. Id. In that regard, the Board finds that the notification requirements of 38 U.S.C.A. §§ 5104 and 7105 have been met. A review of the record indicates that the appellant was duly provided notice of the decision on appeal, as well as an explanation of the procedure for obtaining appellate review of the decision. Following receipt of his notice of disagreement, the appellant was appropriately notified of the pertinent rating criteria regarding the issue of entitlement to an initial rating in excess of 10 percent for a right knee disability. The Board notes that neither the appellant nor his representative has raised any allegations of prejudice regarding any notification deficiencies. Goodwin v. Peake, 22 Vet. App. 128 (2008). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The appellant has not argued otherwise. The appellant's service treatment records are on file, as are all available post-service clinical records specifically identified by the appellant. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2009). Neither he nor his representative has identified any additional evidence pertinent to the claim. Indeed, in a May 2010 statement, the appellant indicated that he had no additional evidence to submit and asked that the Board proceed with consideration of his claim as soon as possible. The appellant has also been afforded numerous VA medical examinations in connection with his claims, most recently in April 2010. 38 C.F.R. § 3.159(c)(4) (2009). The Board finds that the April 2010 examination is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of the claims folder, according to the examiner. The examination report also contains the necessary physical findings upon which to decide the issue on appeal, including range of motion findings and an opinion regarding functional impairment resulting from repetitive motion, expressed in terms of the degree of additional range of motion loss. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2009). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Finally, the Board notes that in the August 2009 Joint Motion discussed above, the parties identified no fault in VA's compliance with its VCAA notification obligations or in the Board's discussion thereof. Rather, the sole basis for remand was to obtain a VA medical examination which addressed the functional range of motion. As discussed above, the Board concludes that the examination obtained pursuant to the joint motion is adequate. Again, the appellant's representative concedes that the RO has "complied with the stipulations of the remand decision to the best of its ability." See May 2010 written arguments. Background In pertinent part, the appellant's service treatment records show that in July 1989, he underwent left knee arthroscopic surgery and was found to have osteochondritis dissecans, a condition "resulting in the splitting of pieces of cartilage into the joint, particularly the knee joint or the shoulder joint." McIntosh v. Brown, 4 Vet. App. 553, 556 (1993). The appellant underwent a Physical Evaluation Board in June 1990 and was found to be unfit for further duty, in part due to osteochondritis dissecans, left knee, with recurrent effusion, without loss of motion or instability. Following his separation from active service, the appellant sought service connection for several disabilities, including a left knee disability. In a November 1990 rating decision, the RO granted service connection for post-operative osteochondritis dissecans, left knee, effective October 10, 1990. In a March 1991 rating decision, the RO assigned an initial 20 percent disability rating for the appellant's left knee disability, pursuant to Diagnostic Code 5257. Despite subsequent claims and appeals, the 20 percent rating assigned to the appellant's left knee disability has remained in effect to date. See e.g. April 1993 and May 1998 Board decisions denying a rating in excess of 20 percent for the appellant's post-operative osteochondritis dissecans, left knee. In June 2003, the appellant submitted his most recent claim for an increased rating for his service-connected left knee disability. He also claimed entitlement to service connection for a right knee disability. In pertinent part, VA clinical records show that in October 1999, the appellant was examined in the orthopedic clinic with complaints of bilateral knee pain. On examination, range of motion was from zero to 130+ degrees. The anterior and posterior cruciate ligaments were intact. Distal motor and sensory examinations were within normal limits. There was no catching, locking, swelling, or other intraarticular knee pathology. X-ray studies showed no bony pathology except for some mild degenerative changes. The assessments included bilateral knee pain and bilateral degenerative joint disease, mild. In connection with his claims, the appellant has been afforded numerous VA medical examinations. At a VA medical examination in July 2001, the appellant's complaints included right knee pain. The examiner noted that the appellant had recently been diagnosed as having degenerative arthritis of the right knee. Examination showed that the appellant walked with an essentially normal gait. Range of motion testing showed that the appellant exhibited bilateral knee motion from zero to 140 degrees. There was no effusion or tenderness of either knee. The ligaments were stable, bilaterally. The diagnoses included early degenerative arthritis of the right knee, secondary to conditions during active duty. The appellant again underwent VA medical examination in August 2003 at which he reported intermittent left knee pain with popping and swelling. The appellant reported that his pain occurred primarily with prolonged walking and standing. Infrequently, it felt as if his left knee gave way or locked temporarily, although he indicated that this had not been a problem. He indicated that he continued to work as a custodian and had taken "a few" days off in the previous year due to knee pain. He indicated that he took ibuprofen when he experienced pain, although he did not take it regularly. He indicated that he wore a neoprene brace on his left knee which tended to help. On examination, there was some pain to palpation but no effusion. Diagnostic testing suggested medial and lateral collateral ligament stability. Range of motion of both knees was from zero to 130 degrees, with pain beginning at 110 degrees in the left knee and 120 degrees in the right knee. Strength was 5/5 and sensation was intact. The appellant was able to do five repetitions with no change in range of motion. X-ray studies showed slight sclerosis of the left medial femoral condyle. The diagnosis was osteochondritis dissecans of the left knee. At a VA medical examination in November 2003, the appellant reported increasing problems with his right knee. He also indicated that he wore a brace on his left knee and used a cane for ambulation. He indicated that he took a pain pill two to three times daily because of combined knee and hip pain. He acknowledged, however, that he had received no medical treatment for his knees in the past two and one half years. He indicated that he continued to work as a custodian and had missed two to three days in the past years due to combined knee and hip pain. On examination, the appellant was observed to walk with a normal gait from the waiting room to the examining room. The examiner indicated that the appellant's gait was "basically normal." Range of motion of the right knee was from zero to 140 degrees, with no effusion, tenderness, or instability. The examiner noted that previous X-ray studies showed early degenerative changes. The impressions included early degenerative arthritis of the right knee, at least partially due to active service. The examiner indicated that in comparing the appellant's current physical condition to that of two and one half years prior, it appeared that his left knee condition had pretty well stabilized. In a January 2004 rating decision, the RO granted service connection for degenerative joint disease of the right knee and assigned an initial 10 percent disability rating, pursuant to Diagnostic Code 5003, effective October 27, 1999. The RO continued the 20 percent disability rating for the appellant's service-connected osteochondritis dissecans, left knee. The appellant appealed the RO's determination, arguing that higher ratings were warranted in light of symptoms such as aching and popping in his knees. In connection with his appeal, the appellant again underwent VA medical examination in January 2005. He complained of left knee pain and a feeling of instability for which he wore a knee brace. He also reported flare-ups in his left knee two to three times yearly. With respect to the right knee, the appellant complained of pain and popping with occasional swelling. On examination, left knee motion was from zero to 115 degrees with pain. There was left calf atrophy and the left knee was slightly swollen. The appellant exhibited a 30 percent loss of strength in flexion and a 50 percent loss of strength in extension on the left. Repetitive motion resulted in a very slight subpatellar crepitus and a further decrease in strength in flexion and extension; however, there was no additional loss in range of motion. With respect to the right knee, range of motion was from zero to 130. Right knee strength was virtually full on flexion and extension and did not change with repetitive motion. There was evidence of minimal subpatellar crepitus. X-ray studies of the right knee were normal, with no evidence of degenerative joint disease. X- ray studies of the left knee revealed osteochondritis dissecans, with no evidence of degenerative joint disease. In both knees, there was no collateral ligament, cruciate ligament, or meniscal impairment. Subpatellar grinding test was negative in both knees. Deep knee bend efforts resulted in severe pain; the veteran could accomplish approximately 1/4th of a deep knee bend. His gait was essentially normal but antalgic. In pertinent part, VA clinical records show that in June 2007, the appellant was seen in connection with an application for a clothing allowance. The examiner noted that the appellant "insisted" that he wore his elastic knee sleeve every day. The examiner, however, noted that the device looked brand new and that upon further questioning, the appellant's story changed to wearing his brace one to two times a week or "whenever he needs it." He was encouraged to seek evaluation by the orthopedic department, which he had not seen in many years, to see if the device was appropriate. The appellant again underwent VA medical examination in March 2008. His complaints included knee pain which increased with excessive activity. He reported that he used a cane 10 percent of the time and wore a brace 50 percent of the time. He indicated that he was receiving no medical treatment for his knee disabilities, although he took ibuprofen two to three times weekly. The appellant reported that he continued to work as a custodian requiring him to be on his feet for prolonged periods. He claimed that he missed one to two days weekly due to foot and knee pain. On objective examination, the appellant exhibited full range of motion in both knees. Repetitive motion did not result in any additional limitations. There was tenderness over the medial joint line of the left knee. The ligaments were stable and there was no evidence of effusion, bilaterally. The appellant specifically denied any buckling, locking, incoordination, weakened movement, or excessive fatigability. The examiner commented that there did not appear to be a significant change in the clinical picture of the appellant's knees as compared to the VA examination report of three years ago. Additional VA clinical records show that in November 2008, the appellant reported intermittent left knee pain, especially when he was on his feet a lot at work. Examination showed good range of motion with no effusion, warmth, or tenderness. The knee was stable to stress maneuvers. The examiner recommended Tylenol and icing. At the most recent VA medical examination in April 2010, the appellant claimed to have increasing pain in both knees. He also claimed that his left knee was unstable and would give out and lock, usually one to two times weekly. He denied right knee instability. The appellant claimed that his left knee pain was constant, and he also had weakness, a lack of endurance, and swelling, as well as flare-ups with weather changes or prolonged weight bearing. His right knee pain was intermittent with stiffness and occasional swelling. The appellant reported that he was a custodian and on his feet often. He needed to take frequent breaks due to knee pain from prolonged walking. The examiner noted that the appellant had unlimited standing ability but could only walk a mile before he needed to sit down and rest due to knee pain. He also indicated that knee pain affected his ability to do outside work due to decreased ability to bending. The appellant denied surgeries or hospitalizations. On examination, there was bilateral crepitus and tenderness to palpation. There was no swelling. Laxity testing was negative. Range of motion of the right knee was from zero to 125 with pain reported throughout movement. There was loss of motion with repetition to 120 degrees. Range of motion for the left knee was from zero to 130 with pain, with loss of motion with repetition to 120 degrees. The initial impression was degenerative joint disease of the left knee with right knee strain. Subsequent X- ray studies showed no significant radiographic abnormality of the right knee. The left knee exhibited no significant interval change from the previous study in 2005. In a May 2010 statement, the appellant claimed that the examiner's conclusion that he was able to stand for an unlimited period of time was incorrect. Rather, he claimed that he could only walk or stand with difficulty as he experienced sharp, stabbing pain when bending his knees. He also indicated that his knees ached at night, requiring him to take over the counter medication in order to sleep. He claimed that he frequently had to use ice, compression, and elevation therapy to manage his pain. Applicable Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2009). In considering the severity of a disability, it is essential to trace the medical history of a veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). 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 (2009); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although 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 a veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate, however, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where a claimant appeals the initial rating assigned for a disability, as in the instant case with the appellant's right knee, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2009). Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2009). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2009). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2009). The Court has emphasized that a claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993). Notwithstanding the provisions of 38 C.F.R. § 4.14, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994), 38 C.F.R. § 4.25 (2009). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) Analysis Rating criteria Under the rating schedule, 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. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of knee extension are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is warranted for slight impairment of the knee due to recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate impairment of the knee due to recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe impairment of the knee due to recurrent subluxation or lateral instability. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. Under those criteria, a 10 percent rating is assigned for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked knee or ankle disability, and finally, a 40 percent evaluation is warranted where nonunion of the tibia and fibula is productive of loose motion requiring a knee brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2009). As noted, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14 (2008); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2009). Left knee As set forth above, the appellant's service-connected left knee disability, post-operative osteochondritis dissecans, has been evaluated by the RO as 20 percent disabling. The appellant contends that he is entitled to a rating in excess of 20 percent in light of his symptoms of pain and functional loss. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for any period of the claim. Osteochondritis dissecans is not specifically delineated in the rating schedule. The RO has therefore evaluated the appellant's left knee disability by analogy to "other impairment of the knee," which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted, this provision provides a 20 percent rating for moderate impairment of the knee due to recurrent subluxation or lateral instability. To warrant a rating in excess of 20 percent, the evidence must show severe impairment of the knee due to recurrent subluxation or lateral instability. As described in detail above, however, the appellant's left knee does not demonstrate any impairment due to subluxation or instability. Although the appellant claims that his left knee feels unstable, repeated examinations have consistently shown that his left knee is stable. In October 1999, for example, the appellant's anterior and posterior cruciate ligaments were found to be intact during an orthopedic evaluation. Additionally, the examiner indicated that there was no catching, locking or other intraarticular knee pathology. At a VA medical examination in July 2001, the appellant's knee ligaments were again examined and found to be stable. Diagnostic testing performed at the August 2003 VA medical examination suggested medial and lateral collateral ligament stability. At the VA medical examination in January 2005, the examiner indicated that the appellant exhibited no collateral ligament, cruciate ligament, or meniscal impairment. The ligaments were also found to be stable at the March 2008 VA medical examination. At the most recent VA medical examination in April 2010, laxity testing was again negative. The medical evidence of record contains no indication, nor has the appellant contended, that his left knee disability is manifested by recurrent subluxation. In light of this evidence, the Board finds no basis on which to assign a compensable rating under Diagnostic Code 5257. In reaching this decision, the Board has considered the appellant's subjective complaints that he wears a left knee brace and that his knee feels unstable or gives way. The Board finds, however, that the objective evidence of record, including numerous examinations consistently finding that the appellant's knee exhibits no instability, greatly outweighs his subjective reports. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating, much less a rating in excess of 20 percent, for the appellant's left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In light of this finding, the Board has alternatively considered evaluating the appellant's left knee disability under the provisions pertaining to limitation of motion. In this case, however, the medical evidence of record shows that the appellant's left knee motion is not limited to the extent necessary to meet the criteria for a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 or 5261. At the August 2003 VA medical examination, for example, range of motion of the left knee was from zero to 130 degrees, with pain beginning at 110 degrees. At the VA medical examination in January 2005, left knee motion was from zero to 115 degrees with pain. VA medical examination in March 2008, showed that the appellant exhibited full range of motion at that time. Additionally, repetitive motion did not result in any additional limitations. At the most recent VA medical examination in April 2010, range of motion for the left knee was from zero to 130 degrees with pain. There was additional loss of motion with repetition to 120 degrees. The Board notes that these range of motion findings clearly do not warrant a compensable rating under the criteria based on limitation of extension or flexion. 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. Although the schedular criteria for a compensable rating based on limitation of motion are not met, the Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). After considering the record, however, the Board finds that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of a rating in excess of 20 percent. For example, at the VA medical examination in August 2003, range of motion of the left knee was from zero to 130 degrees, with pain beginning at 110 degrees. Additionally, that examination showed that the appellant was able to do five repetitions with no change in range of motion. At the VA medical examination in January 2005, the appellant's left knee motion was from zero to 115 degrees with pain. Repetitive motion resulted in a decrease in strength but no additional loss in range of motion. A VA medical examination in March 2008 showed full range of motion, with no additional loss on repetition. Most recent VA medical examination showed range of motion from zero to 130 with pain, with further loss of motion with repetition to 120 degrees. Even with consideration of the appellant's painful motion and occasional loss of strength, the Board finds that these objective findings do not more nearly approximate the functional equivalent of limitation of motion rated in excess of 20 percent. The Board has considered the appellant's contentions to the effect that he experiences symptoms such as a stabbing pain when bending his knees; aching which requires him to take ibuprofen; and difficulty in walking or standing for prolonged periods. The Board finds that such symptoms, however, are contemplated in the currently assigned 20 percent rating. A rating in excess of 20 percent is not warranted, absent additional functional loss, supported by adequate pathology. The Board has also reviewed other diagnostic codes that potentially relate to impairment of the knee, but finds that application of an alternative diagnostic code does not result in a rating in excess of 20 percent. For example, Diagnostic Code 5258 provides for a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. No higher rating is available. Additionally, the Board notes that there has been no evidence of ankylosis to warrant a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5256. Finally, although X-ray studies have shown an irregularity of the medial condyle of the femur, there is no evidence of impairment or malunion of the tibia and fibula, nor has any medical professional described the appellant's left knee disability as marked. Thus, a rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Again, despite the appellant's subjective complaints, as set forth above, repeated examination has consistently shown that the appellant's left knee is stable, with no objective indication of instability, subluxation, or pathology of the ligaments, to warrant a separate compensable disability rating due to instability or subluxation in addition to the compensable rating currently assigned for his symptoms of pain and functional loss. See VAOPGCPREC 23-97. The Board also notes that the appellant has not been shown to exhibit compensable limitation of flexion and extension to warrant separate disability ratings. See VAOPGCPREC 23-97. Again, the compensable disability rating currently assigned is based on his overall left knee symptoms of pain and functional loss. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the appellant's service- connected left knee disability. The benefit-of-the-doubt doctrine is therefore not for application here. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55 (1990). Right knee As set forth above, the appellant's service-connected right knee disability has been evaluated by the RO as 10 percent disabling since the award of service connection. He contends that a higher rating is warranted in light of his symptoms of pain and functional loss. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for any period of the claim. As noted, arthritis established by X-ray findings, is rated on the basis of limitation of motion. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. In this case, however, the medical evidence of record shows that the appellant's right knee motion is not limited to the extent necessary to meet the criteria for a compensable rating under Diagnostic Codes 5260 or 5261. For example, VA clinical records note that in October 1999, range of motion of the right knee was from zero to 130 degrees. At VA medical examinations in July 2001, November 2003, and March 2008, range of motion of the right knee was full, from zero to 140 degrees. At the August 2003 VA medical examination, range of motion was from zero to 130 degrees, with pain beginning at 120 degrees. At the January 2005 VA medical examination, range of motion was from zero to 130. At the most recent VA medical examination in April 2010, range of motion of the right knee was from zero to 125 with pain reported throughout movement. The Board notes that these range of motion findings clearly do not warrant a compensable rating under the criteria based on limitation of extension or flexion. 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. Although compensable loss of flexion or extension has not been shown, the record contains some evidence of X-ray evidence of arthritis. There does appear to be some conflict in the record as to whether the appellant's service-connected right knee disability is manifested by X-ray evidence of arthritis. X-ray studies conducted in 1999, for example, reportedly demonstrated some mild degenerative changes. X-ray studies conducted in 2005 and 2010, however, were reportedly negative for any significant radiographic abnormalities. Affording the appellant the benefit of the doubt, the Board will consider the positive X-ray findings of arthritis. In light of this evidence, and considering the appellant's reports of painful right knee motion, the Board finds that the currently-assigned 10 percent rating is appropriate. Hicks v. Brown, 8 Vet. App. 417 (1995); see also 38 C.F.R. § 4.59. In light of the appellant's complaints of pain and functional loss, the Board has also considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. See also DeLuca, 8 Vet. App. at 206-07. In that regard, it is noted that the record contains subjective complaints of right knee pain, which the appellant indicates limits his ability to walk, climb stairs, etc. He also takes pain medications. After carefully reviewing the pertinent evidence of record, however, the Board finds that the criteria for a rating in excess of 10 percent have not been met under 38 C.F.R. §§ 4.40, 4.45, and 4.59. The appellant's current 10 percent rating is based on his symptoms of right knee pain; painful, very slightly limited motion; and functional loss. 38 C.F.R. § 4.71, Plate II, Codes 5260, 5261. The Board finds that there is insufficient objective evidence that additional factors would restrict motion to such an extent that the criteria for a rating higher than 10 percent would be justified. For example, at the most recent VA medical examination in April 2010, the examiner considered the veteran's reported symptoms but found only objective functional loss from repetitive use; the appellant's range of motion was from zero to 130 degrees, with loss of motion with repetition to 120 degrees. There have been no additional objective findings, such as right leg atrophy from disuse, which would restrict motion to such an extent that the criteria for a rating in excess of 10 percent would be justified. Thus, the Board finds that the appellant's right knee disability has been appropriately rated as 10 percent disabling since the award of service connection. The Board has also reviewed other diagnostic codes that potentially relate to impairment of the knee, but finds that application of an alternative diagnostic code does not result in an initial rating in excess of 10 percent. For example, there has been no objective finding of dislocation of the semilunar cartilage of the right knee, nor is there any evidence of ankylosis to warrant higher ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5256 or 5258. Additionally, despite the appellant's subjective complaints, as set forth above, repeated examination has consistently shown that the appellant's right knee is stable, with no objective indication of instability, subluxation, or pathology of the ligaments, to warrant a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257. In that regard, the Board further finds that absent objective evidence of additional, compensable disability due to instability or subluxation, a separate 10 percent rating is not warranted. See VAOPGCPREC 23-97. The Board also notes that the appellant has not been shown to exhibit compensable limitation of flexion and extension to warrant separate disability ratings. See VAOPGCPREC 23-97. Again, the compensable disability rating currently assigned is based on his overall right knee symptoms of pain and functional loss. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the appellant's service-connected right knee disability. The benefit of the doubt doctrine is therefore not for application here. 38 U.S.C. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55 (1990). Extraschedular consideration With respect to both issues on appeal, the Board has also considered referral of the case for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). In that regard, the appellant has claimed that he has missed time from his work as a custodian due, in part, to his service-connected knee disabilities. As a preliminary matter, the Board notes that the appellant's contentions in this regard have been inconsistent. At August and November 2003 VA medical examinations, the appellant reported that he had missed "a few" days from work, approximately two or three days, due to knee pain. At his March 2008 VA medical examination, however, he claimed that he missed two or three days weekly. At the most recent VA medical examination in April 2010, the appellant reported that he took frequent breaks while working as a custodian, but reported no time lost. In addition to these inconsistencies, the Board notes that the record on appeal contains no objective evidence showing that the appellant's right and/or left knee disability results in marked interference with employment beyond the schedular criteria. The Board finds that this is consistent with the fact that the appellant, by his own admission, rarely seeks professional medical attention for his service-connected knee disabilities. The Board finds that if the appellant was actually missing more than half of his working days due to knee pain, as he claimed at the 2008 VA medical examination, he would undoubtedly seek professional medical treatment on a more regular basis. In summary, the Board finds that although the appellant's knee disabilities no doubt interfere with his ability to engage in certain activities necessary for his employment as a custodian, such as prolonged walking, such interference is reflected in the disability ratings currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and 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 further notes that the record contains no indication, nor does the appellant contend, that his service-connected right or left knee disability necessitates frequent periods of hospitalization. In fact, it does not appear that the appellant has ever been hospitalized for treatment of his service-connected right or left knee disability. The Board additionally observes that there do not appear to be any unusual clinical aspects of the service-connected knee disabilities noted in the medical records, and the appellant and his representative have neither identified such nor indicated that such exist. Thus, absent any objective evidence that the appellant's right or left knee disability, in and of itself, is productive of marked interference with employment beyond that contemplated by the schedular criteria, necessitates frequent hospitalization, or that the manifestations associated with this disability are unusual or exceptional, referral for consideration of an extra- schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this regard, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for a left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs