Citation Nr: 1027481 Decision Date: 07/22/10 Archive Date: 08/02/10 DOCKET NO. 02-03 365A ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for left knee injury residuals with chondromalacia patella, currently evaluated as 30% disabling. 2. Entitlement to an increased rating for left knee osteoarthritis, currently evaluated as 10% disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from August 1978 to December 1983. This appeal to the Board of Veterans Appeals (Board) originally arose from a May 2001 rating action that denied a rating in excess of 20% for left knee injury residuals with chondromalacia patella. In December 2003, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decisions of April 2004 and March 2006, the Board remanded this case to the RO for further development of the evidence and for due process development. By rating action of June 2007, the RO granted a 30% rating for left knee injury residuals with chondromalacia patella, and assigned a separate 10% rating for left knee osteoarthritis; the matters of ratings in excess of 30% and 10% remain for appellate consideration. By decisions of March and December 2008, the Board remanded this case to the RO for further development of the evidence and for due process development. By rating action of April 2010, the RO denied a total disability rating based on individual unemployability due to the veteran's service-connected left knee disabilities. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The veteran's left knee injury postoperative residuals with chondromalacia patella are manifested by complaints of pain, weakness, and stiffness, with objective findings including swelling, tenderness, crepitation, effusion, extension varying between 0 and -30 degrees, and flexion varying between 25 and 135 degrees, with no evidence of lateral instability, and are not more than severely disabling. 3. The veteran's left knee osteoarthritis is manifested by complaints of pain, with objective findings including joint tenderness and no instability on examinations. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30% for left knee injury residuals with chondromalacia patella are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2009). 2. The criteria for a rating in excess of 10% for left knee osteoarthritis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, and Part 4, including §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009)) includes, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, it defines the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the increased rating claims on appeal has been accomplished. A May 2004 post-rating RO letter informed the Veteran and his representative of the VA's responsibilities to notify and assist him in his increased rating claim, and of what was needed to establish entitlement thereto (a showing that the service- connected condition had gotten worse). An April 2006 post-rating RO letter notified them that a disability found to be service connected would be assigned a rating by applying relevant Diagnostic Codes (DCs) which provide for a range in severity from 0% to 100%, based on the nature and symptoms of the condition, their severity and duration, and their impact upon employment. The 2006 letter also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing entitlement to higher compensation - e.g., competent lay statements describing symptoms, medical records, employer statements, and other evidence. Thereafter, he was afforded opportunities to respond. Thus, the Board finds that the appellant has received sufficient notice of the information and evidence needed to support his higher rating claims, and has been afforded ample opportunity to submit such information and evidence. Additionally, the 2004 and 2006 RO letters provided notice that the VA would make reasonable efforts to help the appellant get evidence necessary to support his claims, such as medical records (including private medical records), if he provided enough information, and, if needed, authorization, to obtain them, and further specified what evidence the VA had received; what evidence the VA was responsible for obtaining, to include Federal records; and the type of evidence that the VA would make reasonable efforts to get. The Board thus finds that the 2004 and 2006 RO letters cumulatively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify a claimant of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; and (3) the evidence, if any, to be provided by the claimant. As indicated above, all 3 content of notice requirements have been met in this case. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matters now before the Board, documents fully meeting the VCAA's notice requirements were not furnished to the Veteran prior to the May 2001 rating action on appeal. However, the Court and the U.S. Court of Appeals for the Federal Circuit have since further clarified that the VA can provide additional necessary notice subsequent to an initial RO adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication, as a whole, is unaffected, because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F. 3d 1317, 1323 (Fed. Cir. 2007) (a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, following the April 2006 notice to the Veteran, the claims for increased ratings were readjudicated by rating action of June 1007 and in October 2007, September 2008, and April 2010 SSOCs. In March 2006, the Court issued a decision in the consolidated appeal of Dingess/ Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that, in rating cases, a claimant must be informed of the rating formula for all possible schedular ratings for an applicable rating code. In this case, the Board finds that pertinent rating code information was furnished to the Veteran in the October 2001 SOC and the November 2005 and April 2010 SSOCs, and that this suffices for Dingess/Hartman. The RO also afforded him proper notice pertaining to the degree of disability and effective date information in the April 2006 letter. Additionally, the Board finds that all necessary development on the increased rating claims currently under consideration has been accomplished. The RO, on its own initiative and pursuant to the Board remands, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claims. The Veteran was afforded a comprehensive VA examinations in November 1998, April 2001, May 2004, October 2006, and October 2009. A copy of the April 1999 Social Security Administration decision denying the Veteran disability benefits, together with medical records underlying that determination, as well as a transcript of his December 2003 Board hearing testimony have been associated with the claims folder and considered in adjudicating these claims. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. In November 2007, June 2008, and April 2010, the Veteran stated that he had no other information or evidence to submit in connection with his claims. The record also presents no basis to further develop the record to create any additional evidence for consideration in connection with the matters on appeal. Under these circumstances, the Board finds that the appellant is not prejudiced by appellate consideration of the increased rating claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of 2 ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a 10% rating is applied for each major joint or group of minor joints affected by limitation of motion. These 10% ratings are combined, not added, under DC 5003, and may not be combined with ratings based on limitation of motion. In the absence of limitation of motion, a 10% rating will be assigned where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20% rating will be assigned where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.71a, DC 5257, severe impairment of either knee, to include recurrent subluxation or lateral instability, warrants a 30% rating. 30% is the maximum rating available under DC 5257. Under 38 C.F.R. § 4.71a, DC 5260, limitation of flexion of either leg to 15 degrees warrants a 30% rating. 30% is the maximum rating available under DC 5260. Under 38 C.F.R. § 4.71a, DC 5261, limitation of extension of either leg to 20 degrees warrants a 30% rating. A 40% rating requires limitation of extension to 30 degrees. A 50% rating requires limitation of extension to 45 degrees. Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion). See 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5262, malunion of the tibia and fibula with marked knee or ankle disability warrants a 30% rating. A 40% rating requires nonunion of the tibia and fibula with loose motion, requiring a brace. 30%, 40%, 50%, and 60% ratings are also available for knee ankylosis under 38 C.F.R. § 4.71a, DC 5256. Loss of use of a foot, for the purpose of special monthly compensation (SMC), will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2009). Extremely unfavorable complete ankylosis of a knee, or complete ankylosis of 2 major joints of an extremity, or shortening of a lower extremity of 3.5 inches (8.9 cms.) or more will be taken as loss of use of the foot involved. 38 C.F.R. § 4.63(a). The Veteran contends that his left knee injury residuals with chondromalacia patella and osteoarthritis are more disabling than currently evaluated. He gave testimony about how they impaired him functionally at the December 2003 Board hearing. However, the Board finds that the evidence provides no basis for more than a 30% rating for left knee injury residuals with chondromalacia patella or a 10% rating for left knee osteoarthritis under any applicable schedular criteria, as there has been no evidence of the symptoms required for higher ratings at any time during the rating period under consideration. On November 1998 VA examination, the Veteran walked with an antalgic limp, favoring the left lower extremity. There was no localized tenderness about the knee. There was full range of left knee motion with some sub-patellar crepitation on flexion and extension movements. The collateral and cruciate ligaments, as well as left lower extremity reflexes, sensation, and circulation were intact. X-rays revealed an essentially negative left knee with very minimal degenerative changes of the patella, and no change since previous X-rays of March 1994. On March 1999 examination by B. M., M.D., the Veteran complained of left knee tenderness and pain that limited his locomotion. On examination, the Veteran limped and wore a left knee brace. The left knee was swollen, tender, hot, and extremely painful. He could only flex up to 25 degrees. The impression was severe left knee osteoarthritis. On December 1999 VA outpatient examination, the Veteran complained of left knee pain, and he limped on his left lower extremity. On current examination, the knee was normal, with full extension and flexion limited to 100 degrees. The ligaments were intact, and there was no effusion. January 2001 VA left knee X-rays revealed mild osteoarthritic changes involving the patellofemoral compartments. The medial and lateral compartments were unremarkable. The impression was mild patellofemoral arthritis. On April 2001 VA examination, the Veteran complained of throbbing left knee pain which was relieved by medication and bedrest, as well as swelling after prolonged walking. There was no history of locking or instability. On examination, the Veteran walked with a slight limp favoring his left lower extremity. He wore an elastic knee cage with stays and a patella relief. The left knee had a normal contour and a knobby appearance, with no evidence of joint effusion. There was no localized tenderness above the knee joint spaces, and no patellar compression. The patellar apprehension sign was negative. There was full left knee range of motion, with mild crepitation on movement. The collateral and cruciate ligaments, as well as left lower extremity reflexes, circulation and sensation were intact. The diagnosis was status post left knee chondroplasty. On mid-August 2001 VA outpatient examination, the Veteran complained of left knee pain and swelling, inability to walk for prolonged distances, and difficulty squatting and carrying heavy weight. Current examination showed moderate swelling around the patella and no effusion. Knee range of motion was from 0 to 100 degrees, with further flexion painful, and stability was normal. X-rays confirmed the diagnosis of old left knee chondromalacia patella, with current development of degenerative arthritis of the patellofemoral joint. The impression was left knee patellofemoral degenerative arthritis. Subsequent evaluation in late August showed left knee degenerative joint disease (DJD) that was more pronounced in the patellofemoral joint. The assessment was left knee DJD with severe chondromalacia patella with DJD changes. On June 2002 VA outpatient examination, the Veteran complained of severe knee pain. Left knee X-rays demonstrated no abnormalities when compared with previous January 2001 studies. The assessment was patellar chondromalacia with failed conservative measures. Examination in January 2003 showed active range of left knee motion from 0 to 105 degrees, and he complained of severe pain in February, and pain and swelling in March. Examination in March showed neutral left knee alignment, mild increased warmth, tenderness, and moderate effusion and/or swelling about the suprapatellar pouch. The Veteran had an antalgic gait, and he guarded his knee, but the knee was neurovascularly intact. The knee was aspirated, with a small amount of clear blood-tinged synovial fluid that did not appear to be inflamed. The impression was left knee DJD, rule-out infection. Subsequent examination the same day showed left knee range of motion from 10 to 90 degrees, with warmth, a positive grind, joint line tenderness, and no erythema. X-rays revealed moderate DJD, primarily patellofemoral. The assessment was moderate DJD with severe pain, previous meniscectomy, and no evidence of infection on laboratory tests or clinical examination. On examination in June, the left knee joint line was tender to palpation, with crepitus and no swelling, and the knee was neurovascularly intact. X-rays revealed slight narrowing of the knee joint compatible with degenerative changes. The assessment was left knee DJD. On October 2003 VA outpatient examination, the Veteran complained of left knee arthritic pain. Current examination showed neutral left knee alignment, a small effusion, patellofemoral crepitus, and an antalgic gait, and the knee was neurovascularly intact. Range of motion was from 0 to 135 degrees. X-rays confirmed the diagnosis of old left knee chondromalacia patella, with current development of degenerative arthritis of the patellofemoral joint. The impressions were left knee chondromalacia patella and arthritis. When seen again in March 2004, the Veteran complained of left knee pain. On examination, he limped, favoring the left leg. The assessment was left knee DJD. On May 2004 VA examination, the Veteran complained of left knee pain and swelling and inability to remain on his feet for more than a half-hour. On current examination, the veteran limped on his left leg while wearing a DonJoy brace. Active left knee range of motion was from -10 to 80 degrees. There was +2 swelling, with tenderness on palpation diffusely over the knee, and evidence of effusion in the suprapatellar area. Left knee stability was good, and there was no evidence of recurrent subluxation or lateral instability. The diagnosis was chondromalacia with degenerative arthritis of the tibial femoral joint. The examiner commented that the Veteran was functionally impaired by having to wear a brace, limited range of motion because of his limp, and inability to stand for more than a half- hour without a rest. On June 2004 VA outpatient examination, the Veteran complained of left knee arthritic pain. Current examination showed neutral left knee alignment, a small effusion, patellofemoral crepitus, and an antalgic gait, and the knee was neurovascularly intact. Range of motion was from 0 to 135 degrees. The impression was advanced left knee patellofemoral DJD. When seen again in January 2005, the left knee was tender to palpation, with a mildly diffuse joint line. The knee was ligamentously stable, and there was no effusion. On early May 2005 VA outpatient examination, the Veteran complained of left knee pain, and walked with a cane, but the examiner noted that he seemed to get around OK. Current examination showed no effusion and minimal warmth. The knee was tender to palpation, with a mildly diffuse joint line, and was ligamentously stable. There was no evidence of malalignment or excessive tilt. X-rays revealed minimal left knee degenerative arthritis, with no significant change from previous X-rays of March 2003. The assessment was patellofemoral DJD, minimal on X- ray but associated with significant pain. The physician opined that a total knee arthroplasty was not indicated, and the Veteran was encouraged to remain as active as possible. When seen again in late May for an injection, the veteran's left knee joint line was tender to palpation. There was crepitus, but no swelling, and the knee was neurovascularly intact. The assessment was left knee DJD. In June, the Veteran reported improvement to the knee with injections. On January 2006 VA physical therapy evaluation, the Veteran complaints included severe, sharp left knee pain that was aggravated by stair climbing and prolonged walking and standing, and was relieved by rest, sitting, and a knee brace. on examination, the Veteran walked with an antalgic gait on the left lower extremity. There was tenderness over the medial left knee joint line, retropatellar crepitus, and -30 degrees left knee extension. Apprehension, McMurray's, and anterior drawer tests were negative. There was positive valgus stress on the left knee. Sensation was intact in the left lower extremity. When seen again in February, the Veteran was able to perform entire left lower extremity ergometer revolutions for 8 minutes. The assessment was knee stiffness and pain. On October 2006 VA examination, the Veteran complained of chronic left knee pain with flare-ups approximately twice per week, weakness, stiffness, swelling, fatigability, lack of endurance, and inability to stand and sit for prolonged periods. He received fair relief with medications. The Veteran gave a history of recurrent episodes of what the examiner classified as mild lateral subluxation of the patella on almost a weekly basis, and he was able to relocate the patella himself. On examination, the Veteran walked with a slow, antalgic, and ataxic-appearing gait. There was mild left knee effusion, a positive apprehension sign, pain with patellar compression testing, and evidence of sub-patellar crepitus. There was no pain along the tibia/fibula joint laterally, and no frank parapatellar pain. There was mild pain mid-tendon and at the insertion of the inferior patella. There was negative laxity medially and laterally, with no demonstrable instability of the medial and lateral collateral ligaments. The A-P drawer sign and McMurray's test were negative. There was grossly obvious muscle mass loss in the left thigh and calf compared to the right. Left knee range of motion was from 0 to 80 degrees, with pain when stopped. Repeat testing showed extension limited to 20 degrees. The physician felt that there had been a deterioration of the veteran's left knee function since the last May 2004 VA examination, and the diagnosis was tri-compartmental arthritis, especially patellofemoral joint arthritis that was progressive and at least moderately severe. The veteran's knee was felt to be markedly weakened and productive of severe impairment. On June 2007 VA physical therapy evaluation, the Veteran denied mobility problems, stating that he had been walking down stairs and outside; this was confirmed by the nursing staff. When questioned about his cane, the Veteran reported that he only used a cane at the VA or when walking long distances. On September 2009 VA physical therapy examination, the Veteran ambulated without assistive device. He complained of left knee pain, and range of motion was within normal limits. Left knee strength was 3-/5 in extension, reflecting ability to move thorough a full range against gravity, and 4-/5 in flexion, reflecting ability to hold contraction against moderate pressure. Sensation was intact. Static balance was good, and dynamic fair. On October 2009 VA examination, the Veteran complained of progressive left knee pain with stiffness, weakness, occasional giving-out, and flare-ups approximately twice per week; he denied heat, redness, subluxation, or dislocation. On examination, gait was mildly antalgic with a forearm crutch. There was tenderness to palpation at the patellofemoral joint and the medial joint line. There was no overt effusion. The Lachman test was negative, and the McMurray test equivocal, as the Veteran exhibited heavy guarding. The ligaments were all intact. The patellar grind test was positive, with crepitus with motion. On left knee range of motion testing, forward flexion was to 110 degrees, with pain from 70 to 110 degrees, and extension was to 0 degrees and painless. X-rays revealed slight narrowing of the left knee joint compatible with degenerative changes involving the medial and patellofemoral compartments. The diagnosis was left knee chondromalacia patella and osteoarthritis. In a December 2009 addendum to the above examination report, the VA physician opined that it was not at least as likely as not that the veteran's left knee disability was the sole cause of his inability to work, noting that he was significantly deconditioned from inactivity. His knee condition was not severe, and he required the assistance of crutches or a rolling walker to ambulate due to a combination of deconditioning and knee pain. The doctor further opined that deconditioning was as much a factor as knee pain in the veteran's inability to work. On that record, the Board finds that the medical evidence does not support the assignment of a 40% schedular rating for the left knee injury residuals with chondromalacia patella or a 20% schedular rating for left knee osteoarthritis at any time during the rating period under consideration. There is no evidence that the criteria for a 20% schedular rating under DC 5003, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations, have been shown. Although limitation of left leg extension to 30 degrees was shown on 1 occasion in January 2006, this single clinical finding does not reflect chronic impairment of left knee extension to that extent, inasmuch as the evidence prior and subsequent to that date consistently shows lesser limitation of leg extension. In this regard, the Board notes that left knee extension ranged between 0 and -20 degrees on October 2006 VA examination. Moreover, the veteran's significant movement limitations recorded on the latter examination are inconsistent with the findings on subsequent June 2007 physical therapy evaluation, wherein the Veteran denied mobility problems, he was observed walking down stairs and outside by the nursing staff, and he reported that he only used a cane at the VA or when walking long distances. Significantly, range of left knee motion was within normal limits in September 2009, and from 0 to 110 degrees on October 2009 VA examination, at which time the physician opined that the veteran's left knee disability was not severe. On the whole, the Board finds that the current 30% disability rating is the most appropriate evaluation for the severe left knee disability generally represented by the veteran's injury residuals with chondromalacia patella as shown by the evidence from 1998 to 2009. The Board has also considered the applicability of alternative DCs for evaluating the veteran's knee disabilities, but finds that no higher schedular rating is assignable. With respect to knee impairment due to recurrent subluxation or lateral instability, and limitation of knee flexion, the Board notes that 30% is the maximum rating available under either DC 5257 in recognition of severe knee impairment, or DC 5260 for limitation of leg flexion to 15 degrees, respectively. In view of the findings showing a measurable range of knee motion during the entire rating period under consideration, a rating under DC 5256 for knee ankylosis, and consideration of an award of SMC for loss of use of a foot under the provisions of 38 C.F.R. § 4.63 are not appropriate. Likewise, a 40% rating under DC 5262 also is not appropriate, inasmuch as tibia and fibula nonunion with loose motion requiring a brace has not been objectively demonstrated. The VA General Counsel has held that a separate rating may be assigned for instability of a knee under DC 5257 if (1) a veteran also has limitation of knee motion which at least meets the criteria for a noncompensable rating under DC 5260 and/or 5261, or (2) he is in receipt of a 10% rating on the basis of X-ray evidence of arthritis and evidence of painful motion. VAOPGCPREC 23-97; VAOPGCPREC 9-98; 38 C.F.R. § 3.59. In this case, a separate compensable rating for instability is not warranted, inasmuch as instability has not been objectively demonstrated on examination. In this regard, the Board notes that the April 2001 examining VA physician specifically noted no history of left knee locking or instability, and knee stability was normal on August 2001 VA outpatient examination. The Veteran demonstrated good left knee stability on May 2004 VA examination, and there was no evidence of lateral instability. The left knee was ligamentously stable on January and May 2005 VA examinations. October 2006 VA examination showed no demonstrable instability, and all left knee ligaments were intact on October 2009 VA examination. The Board also points out that, when evaluating musculoskeletal disabilities, the VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion (see Johnson v. Brown, 9 Vet. App. 7 (1996). In this case, however, functional loss due to pain has already been taken into consideration in the assignment of the 30% rating for left knee injury residuals with chondromalacia patella. 38 C.F.R. § 4.40 specifically provides that, with respect to the musculoskeletal system, functional loss may be due to pain. 38 C.F.R. § 4.59 provides that, with any form of arthritis, painful motion is an important factor of disability, and that the intent of the rating criteria is to recognize painful motion with joint or periarticular pathology as productive of disability. Although on May 2004 VA examination there was evidence of left knee weakness and fatigue with repetitive motion with a 5-pound weight, knee flexion and extension were nonetheless to 60 and -10 degrees, respectively, and the Veteran was able to perform several repetitions before he had to quit because of fatigue. While on October 2006 VA examination left knee flexion after exercise was to 50 degrees and extension was to -30 degrees due to weakness, fatigue, lack of endurance, and incoordination, the physician opined that pain was the veteran's major symptom following exercise. There was no additional limitation of left knee motion due to painful motion, fatigue, weakness, or incoordination after repetitive testing on October 2009 VA examination, and range of motion values were unchanged from baseline testing. Hence, the record presents no basis for assignment of any higher rating based on the DeLuca factors alone. Additionally, the Board finds that there is no showing that, at any time during the rating period under consideration, the veteran's left knee disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), provides a 3-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for a service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether his disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture, and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, his disability picture requires the assignment of an extraschedular rating. With respect to the first step of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected left knee disability are inadequate. A comparison between the level of severity and symptomatology of the veteran's left knee disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology. As discussed above, the rating criteria consider the degree of knee impairment due to limitation of motion, and whether there is arthritis, recurrent subluxation, lateral instability, or ankylosis. Moreover, the Board further observes that the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." In this case, the veteran's symptoms and clinical findings as documented in medical reports do not objectively show that his left knee disability alone markedly interferes with employment (i.e., beyond that contemplated in the assigned schedular rating), or requires frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards, and the Board finds that the assigned schedular ratings for those disabilities are adequate in this case. In this regard, the Board notes that, although the April 2001 examining VA physician noted that the Veteran had been employed until just recently in a job where he unloaded trucks, there was no indication that he terminated this employment due to his service-connected left knee disabilities. While the August 2001 VA outpatient examiner noted that the Veteran could not perform duty involving carrying heavy weight and prolonged walking, standing, and squatting due to his left knee disabilities, and opined that he would not be able to perform heavy-duty work for the rest of his life, there were no restrictions against less-than-heavy-duty work, as evidenced by a subsequent March 2002 VA social work evaluation that noted that the Veteran had been working for an underground cable company laying cable for the past 6 months. After June 2003 VA left knee evaluation, the examiner released the Veteran to work. At the December 2003 Board hearing, the Veteran testified that he had been laid off from his job laying underground cable a year ago. On October 2006 VA examination, the physician noted that the Veteran had had no left knee surgery since military service. While on the latter examination the examiner opined that the Veteran could not be considered able to be employed because of his limitations on standing and moving and his distraction with chronic left knee pain, the Board notes that the significant movement limitations recorded on the 2006 examination are inconsistent with the findings on subsequent June 2007 VA physical therapy evaluation, wherein the Veteran denied mobility problems, he was observed walking down stairs and outside by the nursing staff, and he reported that he only used a cane at the VA or when walking long distances. Dementia and hepatic encephalopathy were found following March 2008 VA psychiatric examination, and the physician assigned a Global Assessment of Functioning score of 25, reflecting that the veteran's inability to function in almost all areas (e.g. having no job) due to those non-service-connected disabilities. Although in a March 2009 claim for VA benefits the Veteran stated that he left his last job at an underground cable company due to his service-connected left knee disabilities, that employer stated in August 2009 that the Veteran was laid off due to lack of work, not due to any disability. On October 2009 VA examination, the Veteran stated that he was unemployed and last worked a year ago for a lawn service, but that knee pain made it too difficult for him to work. However, in December 2009 the VA physician who examined the Veteran in October opined that it was not at least as likely as not that the veteran's left knee disability was the sole cause of his inability to work, noting that he was significantly deconditioned from inactivity. His knee condition was not severe, and the doctor further opined that deconditioning was as much a factor as knee pain in the veteran's inability to work. By rating action of April 2010, the RO denied a total disability rating based on individual unemployability solely due to the veteran's service-connected left knee disabilities. In short, there is nothing in the record to indicate that the service-connected left knee injury residuals with chondromalacia patella and osteoarthritis on appeal cause impairment with employment over and above that which is contemplated in each assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that a disability rating itself is recognition that industrial capabilities are impaired). The Board points out that a percentage schedular rating represents average impairment in earning capacity resulting from a disease and injury and its residual conditions in civil occupations, and that, generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Hence, the Board concludes that the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating pursuant to Hart, inasmuch as the factual findings do not show distinct time periods where the veteran's left knee injury residuals with chondromalacia patella and osteoarthritis exhibited consistent symptoms that would warrant different ratings under the applicable rating criteria, and that the evidence does not support a rating in excess of 30% for left knee injury residuals with chondromalacia patella, or 10% for left knee osteoarthritis, which claims thus must be denied. In reaching this conclusion, the Board has considered the benefit- of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 30% for left knee injury residuals with chondromalacia patella is denied. A rating in excess of 10% for left knee osteoarthritis is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs