Citation Nr: 1127149 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-22 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for arthritis (limitation of flexion), left knee, status post arthrotomy and patellectomy. 2. Entitlement to a compensable rating for instability of the left knee for the period prior to May 8, 2009. 3. Entitlement to a rating in excess of 10 percent for instability of the left knee for the period from May 8, 2009. 4. Entitlement to a rating in excess of 30 percent for arthritis (limitation of flexion), right knee, status post arthrotomy and patellectomy for the period prior to July 1, 2010. 5. Entitlement to a rating in excess of 10 percent for instability of the right knee for the period prior to September 28, 2009. 6. Entitlement to a rating in excess of 10 percent for instability of the right knee for the period from September 28, 2009 to July 1, 2010. 7. Entitlement to a rating in excess of 30 percent for residuals, right knee injury with arthritis, status post arthrotomy and right total knee replacement for the period from September 1, 2011. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from April 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the RO in Atlanta, Georgia. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable. Rather, when he was examined in July 2010, he reported that he was working for the US Postal Service. The question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability(ies) has therefore not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue of entitlement to a rating in excess of 30 percent for residuals, right knee injury with arthritis, status post arthrotomy and right total knee replacement, for the period from September 1, 2011 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran had a full extension of the left knee even with pain; and, neither ankylosis nor nonunion of the tibia and fibula with loose motion, requiring a knee brace, were shown. 2. Instability of the left knee was not shown prior to May 8, 2009. 3. Moderate instability of the left knee was not demonstrated for the period from May 8, 2009. 4. For the period prior to July 1, 2010, the Veteran had a full extension of the right knee even with pain; and, neither ankylosis nor nonunion of the tibia and fibula with loose motion, requiring a knee brace, were shown. 5. Instability of the right knee was not shown prior to September 28, 2009. 6. Moderate instability of the right knee was not demonstrated for the period from September 28, 2009 to July 1, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for arthritis (limitation of flexion), left knee, status post arthrotomy and patellectomy, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260, 5261 (2010). 2. The criteria for a compensable rating for instability of the left knee, for the period prior to May 8, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2010). 3. The criteria for a rating in excess of 10 percent for instability of the left knee, for the period from May 8, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2010). 4. The criteria for a rating in excess of 30 percent for arthritis (limitation of flexion), right knee, status post arthrotomy and patellectomy for the period prior to July 1, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260, 5261 (2010). 5. The criteria for a compensable rating for instability of the right knee for the period prior to September 28, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2010). 6. The criteria for a rating in excess of 10 percent for instability of the right knee for the period from September 28, 2009 to July 1, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board observes that a May 2006 RO letter informed the Veteran of the criteria for assigning disability ratings. He was also specifically advised that he should identify and/or submit evidence that he believed would support his claim. To date, neither the Veteran nor his appeals representative has identified any outstanding evidence. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the present case, the RO associated the Veteran's service treatment records, private treatment records, and VA outpatient treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In addition, the Veteran was provided with VA-contracted examinations regarding the issues on appeal, in May 2006, May 2009 and September 2009. The Board finds the May 2006, May 2009 and September 2009 VA-contracted examination reports to be thorough and adequate upon which to base a decision with regard to his claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant facts. Thus, after a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings a. Procedural History In the present case, the Veteran claims higher ratings for each of his bilateral knee disabilities. Historically, the Veteran injured both knees in service and subsequently underwent multiple arthroscopic surgeries. He later developed arthritis in both knees. As is explained below, the Veteran's disabilities were initially rated, in 1969 and 1976, respectively, under the Diagnostic Code for instability (DC 5257) until September 2006 when his rating was reassigned under a different Diagnostic Code regarding limitation of motion of the knees. The Board observes that the reassignment of the Diagnostic Code raises questions of whether the Veteran's protected disability ratings were severed and/or whether protected service-connected disabilities were severed. See 38 C.F.R. § 3.951(b) (2010) ; see also 38 U.S.C.A. § 1159 (2010). Under 38 C.F.R. § 3.951(b): A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud....The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. In the present case, service connection for the right knee was established in October 1976 and rated, under the rating code for instability, as 100 percent disabling from July 1976 to September 1976, following arthroscopic surgery, and 10 percent disabling from September 1976. His right knee disability rating was increased to 30 percent disabling, under DC 5257, in a rating decision in October 1980 and remained 30 percent disabling until September 2006, with the exception of a brief period of a temporary total rating in 1982. As the 30 percent disability rating was in effect for more than 20 years, it was protected under 38 C.F.R. § 3.951(b) (2010). Service connection was established for the left knee in a rating decision in October 1969 and initially rated as noncompensable, under the rating code for instability. In 1972, the rating was increased to 30 percent, effective in May 1972, and a temporary total evaluation was assigned from June 1972. The left knee rating was returned to 30 percent effective December 1974 and reduced to a 10 percent rating from January 1977. The rating was increased to 20 percent effective in June 1980. The left knee remained rated as 20 percent disabling until February 1997, when it was increased to 30 percent. Thus, while the 30 percent rating was only in effect for less than 10 years, the underlying 20 percent rating was in effect for over 20 years, when the RO reassigned the Diagnostic Code in September 2006, which means that the 20 percent rating was protected under 38 C.F.R. § 3.951(b). The present claims began in March 2006 when he filed claims for increased ratings regarding both knees. In its September 2006 rating decision, the RO continued the 30 percent disability rating assigned for each knee but changed the rating codes for each knee from the Diagnostic Code for instability (DC 5257) to the Diagnostic Code for limitation of flexion (DC 5260). The RO reasoned that the disability ratings should be continued as they had been in effect for many years and sustained improvement had not been shown; however, as no instability was shown at the May 2006 VA examination, the RO noted that the ratings were more appropriately warranted under the limitation of motion codes. In May 2009, the Veteran underwent a VA examination in which left knee instability was shown. Thus, in July 2009, the RO granted a separate compensable rating for mild instability of the left knee effective from May 8, 2009. Similarly, the Veteran underwent a VA-contracted examination in September 2009 which revealed right knee instability. Thus, in a February 2010 rating decision, he was granted a separate compensable rating for mild instability of the right knee effective from September 28, 2009. Next, the Veteran underwent total right knee replacement in July 2010. His disability rating for the right knee was increased to 100 percent, under the Diagnostic Code for knee replacement (DC 5055). The rating based on instability was discontinued as of July 1, 2010. The RO reasoned that the knee replacement surgery should correct any right knee instability. As noted above, his right knee rating reduction scheduled to take place in September 2011, is addressed in the Remand section below. In addition to considering whether the disability ratings themselves are protected under 38 C.F.R. § 3.951(b), the Board has considered whether the September 2006 change in the assignment of the Diagnostic Code used in rating the Veteran's bilateral knee disorder was analogous to severance of a protected disability. Under 38 U.S.C.A. § 1159: Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. As noted above, the Veteran's right and left knee disabilities had been rated under the diagnostic code for instability (DC 5257) for more than 10 years at the time that the RO reassigned the disability under a different rating code. As such, service connection for those disabilities was protected under 38 U.S.C.A. § 1159 (2010). Thus, the question becomes whether a change in the Diagnostic Code is analogous to severance of service connection. Very recently, in June 2011, both the Court of Appeals for Veteran's Claims (CAVC) and the Federal Circuit considered the issue of whether severance of a particular diagnostic code was indeed severance of a service-connected disability. See Murray v. Shinseki, No. 09-0158 (U.S. Vet. App. June 15, 2011), see also Read v. Shinseki, No. 2010-7100 (Fed. Cir. June 22, 2011) . In, Murray, the Veteran had initially been assigned a compensable rating for a left knee disability under the rating code for instability for more than 10 years. Subsequently, the RO changed the rating code to more accurately reflect the limitation of motion related to the Veteran's arthritis. The CAVC determined that because the instability code did not involve arthritis symptoms, the protected disability had been impermissibly severed despite the application of a new Diagnostic Code. However, days after the Murray decision, the Federal Circuit addressed a similar issue in Read. In Read, the Veteran had been service connected for residuals of a gunshot wound and a compensable rating had been assigned regarding a particular muscle group. Over 10 years after the initial assignment of the rating, a VA examiner determined that in fact, a different muscle group had been affected by the gunshot wound and not the muscle group to which the initial diagnostic code applied. Notably, when the disability was initially granted service connection, no diagnosis of a particular muscle group had been identified. Following the VA examiner's report, the Diagnostic Code was changed to reflect the affected muscle group. The Veteran appealed and the Board denied the appeal finding that the diagnostic codes contained the same criteria and that because the disability still enjoyed the same rating, there had been no harm in changing the Diagnostic Code. The CAVC affirmed the Board and the Veteran appealed to the Federal Circuit. The Federal Circuit identified the issue on appeal as whether the service connection for a disability protected under 38 U.S.C.A. § 1159 is severed when the VA assigns to an injury a different Diagnostic Code than originally noted. In reaching its conclusion that the protected disability is not severed, the Federal Circuit considered the rationale behind 38 U.S.C.A. § 1159, as well as other relevant statutory definitions, and determined that 38 U.S.C.A. § 1159 only protects service connection of the disability, not the specific Diagnostic Code. Upon review of the definition of service connection under 38 U.S.C.A. § 101 (16), the Federal Circuit determined that "to sever service connection is to conclude that a particular disability previously determined to have been incurred in the line of duty was incurred otherwise." Id. at p.p. 7-8. The Federal Circuit noted that § 1159 "does not protect the fact of a disability, and therefore, the change in the determination of the applicable Diagnostic Code likewise is unprotected." Id. at p. 8. Specifically regarding the facts in Read, the Federal Circuit agreed with the government's argument that because the same disability was involved in both the initial disability determination and the later specific identification of the particular muscle group that was affected, the change in the Diagnostic Code did not sever anything. His disability was still service connected even though the Diagnostic Code may have changed. Id. at p. 9. Moreover, the Federal Circuit found that the purpose of 38 U.S.C.A. § 1159 was to "protect veterans with long-standing determinations of service connection from suddenly having the determination of service connection stripped." Id. at p. 10. The Federal Circuit noted that "there is nothing in the legislative history that manifests any concern about the situs of the disability or the Diagnostic Code associated with it, and expanding the protection of § 1159 to such situs determinations or Diagnostic Codes does nothing to advance Congress' intention." Id. citing VAOPGCPREC 50-91 (Mar. 29, 1991) (precedential opinion of the VA general counsel) (noting that it would be "beyond the legislative purpose" to allow a veteran to be service connected for two disabilities because of the protection of the statute where only one is shown by the medical evidence). Further, the Federal Circuit noted that VA had not changed its determination that the Veteran's gunshot wound was incurred in connection with his military service, or that he was entitled to compensation for the disability he incurred as a result. Thus, the Federal Circuit found that "to determine that the change of the situs of the disability-or the Diagnostic Code associated with it-was a severance of one service connected disability and an establishment of another, where the cause of the disability and the resultant functional impairment are the same, would ill-serve the purpose of the statute." The Federal Circuit also noted that the issue of reassignment of a diagnostic code was not a novel concept. Referencing Gifford v. Brown, 6 Vet. App. 269 (1994), the CAVC was noted to have held that the correction of the situs of the injury was not a violation of § 1159, because that the Veteran remained service connected for the disability at issue. Thus, based on the foregoing, the Federal Circuit held that that service connection for a "disability" is not severed simply because the situs of a disability-or the Diagnostic Code associated with it-is corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability. The Board recognizes a distinction between Murray and Read in that in Murray, the diagnostic codes for arthritis and limitation of motion do not evaluate the same symptoms as the Diagnostic Code for instability and that in situations such as Read, the differing Diagnostic Codes regarding muscle groups do consider the same symptoms. However, to narrowly construe Read as only applying to muscle groups or similar Diagnostic Code groupings that only consider exactly the same symptoms, would fall short of the holding in Read. Again, in Read, the Federal Circuit considered the broader picture of § 1159 and carefully examined exactly what is protected - service connection for the disability, not the specific Diagnostic Code. Upon careful consideration, the Federal Circuit determined that the specific Diagnostic Code was not protected even though service connection for the disability was protected. In the present case, service connection for the Veteran's right and left knee disabilities has remained in effect for more than 10 years and thus is protected under 38 U.S.C.A. § 1159. Therefore, the Board must consider whether the Diagnostic Codes regarding instability were impermissibly severed in the September 2006 rating decision. As in Read, the same right and left knee disabilities were involved in both the initial disability determination labeled as instability and the later specific identification of the limitation of motion of the service-connected knees. VA has not concluded that the Veteran's bilateral knee disability previously determined to have been incurred in the line of duty was incurred otherwise. Based on the holding in Read, that service connection for the knee disability is protected and not the particular Diagnostic Code, the Board finds that the change in the Diagnostic Code here did not result in a severance. Regarding protection of the disability ratings under 38 C.F.R. § 3.951(b), the Board finds that the right knee disability rating of 30 percent was protected as it was continuously in effect for more than 20 years. Further, while the left knee disability did not maintain a continuous particular disability rating (i.e., the 20 percent rating was in effect for 17 years and the 30 percent rating was in effect for less than 10 years), it maintained at least a 20 percent rating for well over 20 years. Therefore, the Board finds that at least a compensable rating for the left knee was protected. In fact, the 30 percent rating was continued for each knee, despite the change in Diagnostic Code assignment in the September 2006 rating decision. As the Board has already determined that a change in the assigned Diagnostic Code is not severance of the service connected disability, the Board finds that the maintenance of the disability ratings, albeit under more accurate Diagnostic Codes, preserves the protected disability ratings under 38 C.F.R. § 3.951(b). Therefore, the Board will not reinstate the former ratings regarding instability and will consider the ratings as noted on the title page above. b. Laws and Regulations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained 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; 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2010). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2010). The CAVC has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2010). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). The Veteran's bilateral knee disabilities have been service connected for arthritis. Degenerative arthritis is addressed under 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 states that the severity of degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Here, the Veteran's knee disabilities have been rated under DCs 5260 (limitation of flexion) and 5257 (instability). The Board observes that normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Diagnostic Code 5256 provides for the assignment of a 30 percent rating when there is ankylosis in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned when there is extremely unfavorable ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted when there is extremely unfavorable ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted when there is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Diagnostic Code 5258 provides for the assignment of a 20 percent rating when cartilage, semilunar, is dislocated with frequent episodes of "locking," "pain", and effusion into the joint. Diagnostic Code 5259 provides for the assignment of a 10 percent rating for removal of cartilage, semilunar, symptomatic. Diagnostic Code 5262 provides for a 10 percent disability rating when there is malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted when there is malunion of the tibia and fibula with a moderate knee or ankle disability. A 30 percent rating is warranted when there is malunion of the tibia and fibula with a marked knee or ankle disability. And, a 40 percent rating is warranted when there is nonunion of the tibia and fibula with loose motion requiring a brace. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). c. Factual Background In evaluating the Veteran's bilateral knee disabilities, the Board has considered VA examination results as well as private treatment records. For the reasons that follow, the Board has determined that a higher rating is not warranted for either knee. In May 2006, the Veteran underwent a VA-contracted examination. At that time, the Veteran reported the following difficulties with both knees: weakness; difficulty rising from a sitting position; stiffness when sitting for a period; stiffness after he rises from sitting requiring a minute or so before he can walk; swelling during the day; redness; giving way when rising and walking; lack of endurance; fatigability; dislocation when he turns too fast or wrong; constant, localized pain at a level 7 out of 10. He reported that pain was elicited by physical activity and was relieved by rest and medication including Advil, Motrin, and Darvon. He reported that at the time of pain, he was able to function with medication. His disability did not cause incapacity. He reported that his treatment at the time was Motrin. Additional functional impairment was that he could not walk far, could not do physical activity, and was unable to work around the house, mow the grass, garden, squat or climb. The Veteran did not report flare-ups. Objective findings in May 2006 included an observation that the Veteran was obese, both knees showed tenderness and crepitus. Stability tests of both knees were within normal limits. Range of motion on the right indicated flexion to 110 degrees with pain at 100 degrees and on the left from 0 degrees to 120 degrees with pain at 110 degrees. The examiner noted that pain had a major functional impact following repetitive use for both knees; however, the additional limitation was 0 degrees in both knees. Further, the examiner noted that the joint function of both knees was not limited by fatigue, weakness, lack of endurance, or incoordination following repetitive use. The Veteran also underwent a VA examination in May 2009. At that time, he reported constant pain in both knees at level 10 out of 10. He reported that the pain was aching, sharp and sticking. Pain was elicited by physical activity and was relieved by rest and medication including Lortabs, Sulindac, Percocet, and Motrin. At the time of pain, he can function with medication. Additionally, he reported no flare-ups or locking. He also reported the following difficulties with both knees: weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, fatigability, and dislocation. He also reported difficulty walking and standing, and being unable to squat, kneel or stoop. Upon physical examination, the VA examiner noted that the Veteran's gait was within normal limits. There was no evidence of weakness, tenderness, and no signs of edema, effusion, redness, heat or guarding of movement on either side. On the right, there was no evidence of subluxation; however, on the left, there was slight subluxation. Range of motion findings for the both knees were normal with flexion to 140 and extension to zero. Both knee joint functions were not additionally limited by pain, fatigue, weakness, lack of endurance or incoordation after repetitive use. The Veteran also underwent a VA-contracted examination in September 2009. At that time, he reported flare-ups in both knees occurring once a day and lasting for 24 hours (i.e. constant pain) at level 9 out of 10. Flare-ups were precipitated by physical activity and were relieved by rest. He reported that during flare-ups, he could not rest because of pain and feeling ill, and that he could not do any physical activity during a flare-up. He reported that he did not move more than he had to and that the pain was constant. He reported that he could not walk far at all, had problems getting up and down, usually had to find a place to sit after standing around for a couple of minutes. He reported difficulty with standing and walking. He reported that his current treatment is medication but he could not remember the specific medication. He reported that his disabilities had not resulted in incapacitation. He reported that he could not do his activities of daily living as he should and that he was completely limited in all things. He also reported weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, tenderness, subluxation, pain and dislocation, with both knees. He also reported that he did not experience deformity, drainage or effusion. Upon physical examination, the September 2009 VA examiner noted that the Veteran's gait was within normal limits. There were no signs of instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage, genu recurvatum, locking, or ankylosis on either side. On the right, there was evidence of edema, tenderness, slight subluxation, and crepitus. On the left, there was evidence of tenderness and slight subluxation but no edema. Range of motion findings for the both knees were normal with flexion to 140 and extension to zero. Both knee joint functions were not additionally limited by pain, fatigue, weakness, lack of endurance or incoordation after repetitive use. Stability tests for both knees showed slight instability. The Board also acknowledges that during a July 2010 VA examination related to a claim not currently on appeal, the examiner noted that the Veteran was having difficulty ambulating. The examiner indicated that walking was unsteady and warranted the use of aids including knee braces, cane and walker. The examiner indicated that the Veteran's need for the aids was due to both knees, including the right knee that was replaced in July 2010, shortly before the examination in question. The examination did not indicate any range of motion findings or other findings related to the left knee as it was an examination for a different disability not currently on appeal. The Board has also considered private treatment records including records from his private orthopedist. A July 2006 private treatment record indicated crepitance in both knees and flexion to 110 in both knees. X-rays showed advanced osteoarthritis bilaterally. An August 2006 private treatment record reflected that he had permanent impairment of being unable to stand or walk for more than 5 or 10 minutes an hour or a short distance. The orthopedist also noted that he was unable to squat, climb, or kneel. In October 2006, the orthopedist noted that he had right knee range of motion from 0 to 95 degrees and left knee from 10 to 110 degrees. The orthopedist noted that his gait showed that he walked with a cane. The October 2006 private treatment record also noted that the Veteran was a candidate for right knee arthroplasty. As noted above, he underwent the right knee arthroplasty (total knee replacement) in July 2010. Treatment records from the Veteran's family doctor were reviewed as well. His family physician's records do not indicate specific ranges of motion regarding the knees or reports of knee pain. Rather, they contain diagnoses related to other service-connected claims not currently on appeal. The Board has also considered VA outpatient treatment records. A September 2007 VA outpatient treatment record indicated that the Veteran functioned with a cane and pain medication including Vicodin and Darvocet. A July 2008 VA outpatient treatment record revealed that he received pain relieving injections in both knees. d. Analysis As noted above, degenerative arthritis is to be rated under the limitation of motion code sections. The Veteran is already receiving the highest rating under DC 5260 for limitation of flexion in both knees. As shown above, his extension, in both knees, has been within normal limits for the entire period on appeal. Therefore, a higher (a 40 percent) rating is not warranted under DC 5261 for extension limited to 30 degrees. Additionally, there is no basis for a separate compensable rating for extension limited to 10 degrees. Likewise, a higher rating is not warranted under DC 5256 for ankylosis as movement has been shown. Next, ratings are not warranted under DCs 5258, 5259, or 5262 as they are not applicable in the present case. The evidence does not show any dislocation of cartilage, or symptoms of dislocation of cartilage, frequent locking, or nonunion of the tibia and fibula. Further, the Veteran is already rated at a higher rating than the schedular rating provided under DCs 5258 and 5259. Regarding instability of the left knee, a separate compensable rating prior to May 8, 2009 is not warranted. The May 2006 VA-contracted examination specifically noted that there was no instability, despite the Veteran's report of giving way. Additionally, private treatment records and outpatient treatment records did not indicate evidence of instability prior to May 2009. Further, a higher rating for instability from May 2009 is not warranted as the May 2009 and September 2009 VA-contracted examinations, private and outpatient treatment records do not reveal evidence of moderate instability. Indeed, both the May 2009 and September 2009 VA-contracted examinations discussed multiple types of stability tests and the Veteran's left knee only demonstrated slight instability in one of the tests (medial and lateral collateral ligaments stability test). There was no instability in the anterior and posterior cruciate ligaments stability test. Regarding instability of the right knee, a separate compensable rating prior to September 28, 2009 is not warranted as the May 2006 and May 2009 VA-contracted examinations specifically noted that there was no instability, despite the Veteran's reports of giving way. Additionally, private treatment records and outpatient treatment records did not indicate evidence of instability prior to September 2009. Further, a higher rating for instability from September 2009 is not warranted as the May 2006, May 2009 and September 2009 VA-contracted examinations, private and outpatient treatment records did not reveal evidence of moderate instability. Indeed, the September 2009 VA-contracted examination discussed multiple types of stability tests and the Veteran's right knee only demonstrated slight instability in one of the tests (medial and lateral collateral ligaments stability test). There was no instability in the anterior and posterior cruciate ligaments stability test. The Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, as was noted above, the Veteran is already in receipt of the maximum disability rating available under Diagnostic Code 5260. A higher rating is not warranted under that code even when considering the DeLuca provisions. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). Further, in light of the findings of the VA examiners that both knee joint functions were not additionally limited by pain, fatigue, weakness, lack of endurance or incoordation after repetitive use, a higher rating under Diagnostic Code 5261 would be in appropriate. The Board has also considered the Veteran's statements regarding bilateral pain, stiffness, episodes of locking and giving way, difficulty rising, standing and walking as well as statements from the Veteran's pastor and friends regarding their observations of his difficulty using his knees. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Likewise, his pastor and friends are competent to report their observations of the Veteran's limitation of motion as it comes to them through their senses. Id. However, knee pathology is not the type of disorder that a lay person can provide competent evidence on the degree of severity. Thus, the Board finds that the statements of severity by the Veteran, his pastor, and his friends lack probative value as they are not competent to evaluate the severity of his symptoms. Moreover, the Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of his disabilities. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied as to the bilateral knee disabilities. Finally, the disabilities do not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture for his bilateral knee disabilities could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's bilateral knee disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Nevertheless, aside from his hospitalization for his total knee replacement, frequent hospitalizations have not been shown. There is also no evidence that the Veteran's bilateral knee disabilities have resulted in marked interference with work. The Veteran recently reported that his employer had made accommodations for him to allow him to work. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. In sum, a higher rating is not warranted for the entire period on appeal regarding his bilateral knee disabilities. In reaching this conclusion, the benefit of the doubt doctrine has been applied where appropriate. Scar The Board has also considered a separate rating for the Veteran's scar related to his multiple arthroscopic surgeries on both knees. Diagnostic Code 7801 (scars other than the head, face, or neck that are deep or that cause imitated motion) provides a 10 percent rating for scars that cover an area or areas exceeding 6 square inches (39 sq. cm.); a 20 percent rating for scars that cover an area or areas 12 square inches (77 sq. cm.); a 30 percent rating for scars that cover an area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating for scars that cover an area or areas exceeding 144 square inches (929 sq.cm.). Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with Sec.4.25 of this part. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2010). Diagnostic Code 7802 (scars other than the head, face, or neck that are superficial and do not cause imitated motion) provides a 10 percent rating for scars that cover an area or areas exceeding 144 square inches (929 sq. cm.) or greater. Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with Sec.4.25 of this part. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2010). Diagnostic Code 7803 (scars that are superficial and unstable) provides a 10 percent rating for scars that are superficial and unstable. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2010). Diagnostic Code 7804 (scars that are superficial and painful on examination) provides a 10 percent rating for scars that are superficial and painful on examination. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that, in this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. 38 C.F.R. § 4.118 (2010). Diagnostic Code 7805 (other scars) will be rated on the basis of limitation of function. 38 C.F.R. § 4.118 (2010). A separate rating is not warranted for the Veteran's right knee scar as the criteria described in DCs 7801, 7802, 7803, 7804, and 7805 have not been shown. Specifically, the May 2006, May 2009 and September 2009 VA-contracted examiners noted that the Veteran had a linear scar on the anterior right knee that measured 31 cm by 3.5 cm. The VA-contracted examiners all noted that the scar was not painful on examination. There was no skin breakdown. The September 2009 examiner indicated that the scar was superficial with no underlying tissue damage. There was no inflammation, edema, or keloid formation. The scar was not disfiguring and did not limit the Veteran's motion. The September 2009 examiner concluded that there was no limitation of function due to the scar. Likewise, a separate rating is not warranted for the Veteran's left knee scar as the criteria described in DCs 7801, 7802, 7803, 7804, and 7805 have not been shown. Specifically, the May 2006, May 2009 and September 2009 VA-contracted examiners noted that the Veteran had a linear scar on the anterior left knee that measured 26 cm by 2.5 cm. The VA-contracted examiners all noted that the scar was not painful on examination. There was no skin breakdown. The September 2009 examiner indicated that the scar was superficial with no underlying tissue damage. There was no inflammation, edema, or keloid formation. The scar was not disfiguring and did not limit the Veteran's motion. The September 2009 examiner concluded that there was no limitation of function due to the scar. The Board has also considered the private treatment records as well as VA outpatient treatment records. At no time did any of the treatment records indicate that there was any limitation of function due to the scars, that the scars were superficial and unstable, or that they covered an area or areas exceeding 144 square inches. ORDER A rating in excess of 30 percent for arthritis, left knee, status post arthrotomy and patellectomy is denied. A compensable rating for instability of the left knee for the period prior to May 8, 2009 is denied. A rating in excess of 10 percent for instability of the left knee for the period from May 8, 2009 is denied. A rating in excess of 30 percent for arthritis, right knee, status post arthrotomy and patellectomy for the period prior to July 1, 2010, is denied. A rating in excess of 10 percent for instability of the right knee for the period prior to September 28, 2009, is denied. A rating in excess of 10 percent for instability of the right knee for the period from September 28, 2009 to July 1, 2010 is denied. REMAND Regarding the issue of entitlement to a rating in excess of 30 percent for residuals, right knee injury with arthritis, status post arthrotomy and right total knee replacement for the period from September 1, 2011, a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2010). First, as noted above, the Veteran underwent a total right knee replacement in July 2010 and has not had a VA examination regarding the right knee since 10 months prior to the knee replacement. Additionally, a July 2010 VA examination related to a claim not currently on appeal, noted as an aside that the Veteran was having difficulty ambulating. The examiner indicated that walking was unsteady and warranted the use of aids including knee braces, cane and walker. The examiner indicated that the Veteran's need for the aids was due, at least in part, to the right total knee replacement. The Veteran should therefore be scheduled for a VA examination to determine the current level of symptomatology of the right knee. Further, in its March 2011 supplemental statement of the case (SSOC), the RO indicated that the Veteran's temporary total evaluation would end prior to September 1, 2011 and that his right knee would be rated 30 percent disabling from September 1, 2011. The SSOC also indicated that the Veteran's right knee instability rating would be terminated as the right knee replacement should have resolved any instability. Therefore, the VA examiner should also indicate whether any instability is present and whether the total knee replacement resolved the right knee instability that was present prior to the replacement surgery. The Veteran should be advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). Further, in order to ensure that all records are available, any outstanding outpatient treatment records related to his aforementioned disorders should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records pertaining to the Veteran's right knee disability from the outpatient clinic in East Point, Georgia for the period from February 2010 to the present. Any negative response should be noted. 2. Make arrangements for the Veteran to be afforded an examination to evaluate his current right knee disability. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. Tests of joint motion against varying resistance should be performed. Any limitation of motion should be recorded. The extent of any incoordination, weakened movement, and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement, and excess fatigability should be assessed in terms of additional degrees of limitation of motion. If this is not feasible, the examiner should so state. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. The examiner should state whether the Veteran experiences recurrent subluxation or lateral instability of the right knee, and if so, to what extent. The examiner should further describe symptoms to include any ankylosis, gait disturbances, guarding, localized tenderness, malunion of femur, malunion of tibia and fibula, and cartilage dislocation with frequent episodes of locking or effusion if shown. Findings should also be made as to whether the Veteran's right knee disability has resulted in frequent hospitalizations or marked interference with employment. A complete rationale for all opinions expressed should be provided. If the examiner cannot provide an opinion without resorting to mere speculation such should be stated along with rationale for such an opinion. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Upon completion of the above, readjudicate the issues on appeal, to include any records that may not have been previously considered. The issue of TDIU should be addressed in a supplemental statement of the case, not a separate rating decision, as it is part and parcel of the increased rating claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs