Citation Nr: 1101413 Decision Date: 01/12/11 Archive Date: 01/20/11 DOCKET NO. 08-33 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether a March 2008 reduction in rating for right knee instability from 20 percent to 0 percent, effective June 1, 2008, was proper. 2. Entitlement to a rating in excess of 20 percent for instability, right knee, status post anterior cruciate ligament (ACL) reconstruction. 3. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the right knee. 4. Entitlement to an initial rating in excess of 30 percent for limitation of extension of the right knee. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1992 through March 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reduced the Veteran's rating for instability, right knee, status post ACL reconstruction, from 20 percent to 0 percent, effective June 1, 2008. The Board notes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the March 2008 rating decision was issued in response to the Veteran's May 2007 request for increased ratings as to his service-connected right knee disabilities. As such, that rating decision also constituted a denial of his claim for increased ratings. Accordingly, the Veteran's appeal before the Board includes both the propriety of the rating reduction and the denial of his claim for increased ratings. FINDINGS OF FACT 1. A December 2005 rating decision increased the Veteran's rating for right knee instability from 10 percent to 20 percent, effective September 1, 2005. 2. A November 2007 rating decision proposed to reduce the disability rating for the Veteran's right knee instability from 20 percent to 0 percent. The Veteran was notified of the proposed reduction in November 2007 and was notified that he had 30 days to request a hearing and 60 days to submit additional evidence. 3. A March 2008 rating decision reduced the Veteran's disability rating for right knee instability from 20 percent to 0 percent, effective June 1, 2008. The 20 percent rating was in effect for less than five years. 4. Since June 1, 2008, the Veteran's right knee instability has been manifested by subjective complaints of pain, giving way, "locking," and swelling, and objective findings of tenderness, effusion, guarding, instability, and a probable tear in the right meniscus. 5. Throughout the pendency of this appeal, the Veteran's right knee instability has been manifested by symptoms indicative of no more than moderate impairment. 6. Throughout the pendency of this appeal, the Veteran's right knee arthritis has been manifested by subjective complaints of pain and swelling, and objective findings of limitation of flexion to no more than 82 degrees, and limitation of extension to no more than 24 degrees. There have been no complaints or clinical findings of ankylosis, nor has there been any objective evidence of lack of endurance, incoordination, atrophy of disuse, weakened movement, or fatigability during the appeal period. 7. August 2007 VA examination revealed a painful scar on the right knee. CONCLUSIONS OF LAW 1. The March 2008 reduction in rating from 20 percent to 0 percent for right knee instability, effective June 1, 2008, was not proper, and restoration of the 20 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.105(e), 3.159, 4.71a, Diagnostic Codes (DCs) 5257, 5258 (2010). 2. The criteria for a rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.71a, DCs 5257, 5258 (2010). 3. The criteria for a rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.17a, DCs 5003, 5010 (2010). 4. The criteria for a rating in excess of 30 percent for limitation of extension of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.17a, DC 5261 (2010). 5. The criteria for a separate rating of 10 percent for a painful scar of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, DC 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By way of history, a November 1994 rating decision granted service connection for a right knee disability under DC 5257 with a 10 percent disability rating, effective March 16, 1994. From May 2001 to July 2005, the Veteran was granted a number of temporary 100 percent ratings for right knee instability under 38 C.F.R. § 4.30 based on surgical procedures necessitating convalescence. A June 2002 rating decision awarded a separate 10 percent rating for traumatic arthritis of the right knee, effective December 1, 2001. A December 2005 rating decision increased the disability rating for right knee instability to 20 percent, effective September 1, 2005. A November 2007 rating decision proposed to reduce the disability rating for right knee instability from 20 percent to 0 percent, and a March 2008 rating decision reduced the rating from 20 percent to 0 percent, effective June 1, 2008. The Veteran contends that the reduction of the rating for his right knee instability from 20 percent to 0 percent was improper, and that he is also entitled to a rating in excess of such previous rating, because his right knee disability has worsened since he was first granted a 20 percent rating effective in September 2005. He also contends that he is entitled to an increased rating for traumatic arthritis of the right knee. Specifically, the Veteran asserts that his right knee disability has increased in severity due to pain, swelling, and instability, and that these symptoms necessitate the continuous use of a knee brace for stability and steroid injections for pain. He further states that such symptoms affect his ability to work, perform activities of daily living, and play with his children. Rating Reduction A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2010). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received within 30 days, benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1) (2010). The record reflects that in a November 2007 letter, the Veteran was notified of a proposal to reduce the disability rating assigned for his right knee instability. He was additionally notified that he had 60 days for the presentation of additional evidence in order to show that compensation payments should be continued at the present level, and that if he did not respond within those 60 days, his disability rating would be reduced. He was further notified that he could request a pre-determination hearing, and that if such a request was made within 30 days, his payments would be continued at the previously established level pending a final determination. Evaluating the chronology of the process described above, the Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. Furthermore, as the Board concludes herein that restoration of the 20 percent rating is warranted, any failure to follow such procedures would not be prejudicial to the Veteran. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. 38 C.F.R. § 3.344(a)(b) (2010). Those regulations further provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are applicable for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. Similar protections are afforded to veterans who have been awarded a total rating based on unemployability. 38 C.F.R. § 3.343 (2010). Under those criteria regarding reductions, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a),(b) (2010); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). In this case, as the Veteran's 20 percent rating for right knee instability had been in effect since September 1, 2005, a period of less than five years, the provisions of 38 C.F.R. §§ 3.344(a) and 3.344(b) do not apply. 38 C.F.R. § 3.344(c) (2010). An examination disclosing improvement will warrant reduction in the rating. Id. The question is, thus, whether an examination had shown an improvement warranting reduction in the rating. If there is an approximate balance of positive and negative evidence regarding any issue material to determination of the matter, all reasonable doubt shall be resolved in favor of the veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C.A. § 5107(a); Brown, 5 Vet. App. at 421. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2010). When rating a service- connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2010). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2010). However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the schedule's intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a (2010). For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2010). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, any limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than is normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2010). For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2010). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010 (2010). Diagnostic Code 5010, used to rate traumatic arthritis, directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2010). The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2010). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1 (2010). A claimant who has arthritis and instability of the knee may be rated separately under DC 5003 and DC 5257, and rating a knee disability under both of these codes does not amount to pyramiding. 38 C.F.R. § 4.14 (2010); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2010). It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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 right knee instability has been rated under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2010). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a 0 percent rating, as in DC 5257, a 0 percent rating will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2010). Other relevant diagnostic codes include DC 5258, which provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; and, DC 5259, which provides for a 10 percent rating for symptomatic removal of semilunar cartilage. A VA examination report dated September 2005 shows that the Veteran was complaining of symptoms in his right knee to include pain, weakness, stiffness, and swelling. He reported flare-ups two to four times per week involving pain rated as 10/10, during which he was unable to put weight on his right knee. The Veteran reported some "locking up," fatigability, and lack of endurance due to pain and discomfort. He stated that he felt like his knee was giving out or unstable at times. The examiner noted that the Veteran wore a neoprene brace on his right knee. Physical examination revealed crepitus, slight effusion, and an antalgic gait. Flexion was noted to be 0-85 degrees with complaints of pain and discomfort at 85 degrees. Extension was noted to be 0-5 degrees with some discomfort at 0 degrees. Drawer testing showed moderate instability medially and laterally. The examiner indicated that the Veteran was unable to perform the McMurray's test due to pain and unable to test anterior/posterior stability due to the Veteran's inability to flex to 90 degrees. The examiner noted instability of anterior/posterior movement at 80 degrees of flexion. Based on this examination, the Veteran was granted a 20 percent rating for right knee instability. VA treatment notes dated January 2006 and May 2006 show complaints of tightness, pain, difficulty walking, and occasional episodes of "locking." Private treatment notes dated May 2006 through July 2007 document subjective complaints and objective findings of swelling, inflammation, and tenderness. They also reveal treatment involving steroid injections. The Veteran was afforded a VA examination in August 2007. He complained of knee pain that was worse with walking, his knee giving way about once a month, and flare-ups that occurred every three months involving pain and swelling. It was noted that the Veteran wore a brace on the right knee and occasionally used crutches. Physical examination showed a slow but essentially normal gait. Right knee range of motion testing was noted to be 0-102 degrees with subjective pain at 102 degrees, and 0-96 degrees after repetitive motion. Tests for knee stability and collateral ligaments were normal and McMurray's test was mildly positive. The examiner noted that no instability of the right knee was found. Private magnetic resonance imaging (MRI) performed in October 2007 revealed severe medial compartment chondromalacia. VA treatment notes dated April 2008 and June 2008 show complaints of pain and instability, and during the April 2008 visit, slight effusion and leg length discrepancy were also noted. During both the visits in April and June, the Veteran was noted to walk with an antalgic gait manifested by a limp on the right, and his knee was noted to be stable to varus and valgus testing. Range of motion on both dates was noted to be 0-110 degrees. The Veteran was administered steroid injections. The Veteran attended another VA examination in July 2008. The Veteran's complaints included chronic pain, recurrent swelling, episodes of locking, giving way of the knee with weightbearing and pivoting, and 2-3 flare-ups per week. The Veteran was noted to wear a knee brace, and examiner noted the Veteran's statement that, without his knee right brace, his knee slipped. The Veteran was noted to have a slight limp on the right. Range of motion testing showed 0-125 degrees with pain at -70 degrees of extension and tenderness was noted. Lachman testing was +2 and the Veteran was unable to pivot due to guarding. The examiner's impression was instability. Private treatment notes dated July 2008 through October 2008 document continued complaints of pain. In July 2008, tenderness was noted, but there was no effusion and the Veteran's Lachman testing was noted to be negative. In an August 2008 statement, the Veteran reported constant pain for which he had received injections at the VA, and referenced popping of his knee cap. He also reported that he wore a knee brace all the time, and that, even with the brace, he was always in pain and could not walk. He stated that his knee felt like "bone on bone" and that his ACL was very loose. An October 2008 private treatment note documents complaints of pain with rest, pain at night, and pain that was worse with ambulation. It was noted that the Veteran's ability to ambulate was limited due to pain with weightbearing. The Veteran reported that his knee "locked" occasionally, and also gave way with swelling. Also in October 2008, a private MRI showed a probable meniscus tear (75% probability) and significant narrowing in the medial compartment. A partial knee replacement was suggested. The Veteran received VA treatment in December 2008. The Veteran received an injection for pain at this time and indicated that he was not going to go through with the partial knee replacement. The Veteran was noted to have an antalgic gait with a limp on the right. He was noted to have a knee brace intact. Range of motion was 0-110 degrees. The Veteran's knee was stable to varus and valgus testing, and no effusion was noted. VA treatment notes dated March 2009 through June 2009 note chronic knee pain and a history of right knee instability, and treatment with steroid injections. In April 2009, in addition to pain, the Veteran reported that his legs felt uneven when he walked. In June 2009, the Veteran reported that when he did not wear his brace, it felt like his knee was unstable and wanted to give out, although it was noted by the VA provider that instability was not thought to be a problem. An August 2009 VA treatment note reveals Lachman testing of +1, and drawer testing of +1 and +2. It was recommended that the Veteran be custom fit for an ACL brace to stabilize his knee. In December 2009, the Veteran was followed-up for knee pain and instability. Mild tenderness to palpation was noted, as was +1 Lachman testing. The right knee was stable to varus and valgus drawer testing. In April 2010 the Veteran attended another VA examination. He reported pain that increased with climbing stairs. He reported that his knee felt unstable when he walked and that he had the sensation of his knee giving way. The Veteran was noted to wear a metal hinged right knee brace, which reportedly lessened the feeling of instability. The Veteran reported wearing the knee brace at all times and that, without it, he felt like he could not walk. He denied locking. He reported that he could not do yard work or home repairs due to pain and instability. He also reported that he experienced flare-ups about once per week that involved pain, swelling, and knee instability. He indicated that he missed work 1-2 days per month due to these flare-ups. On physical examination, the Veteran was noted to walk with a limp. His right knee was noted to be larger than the left, and the area of the medical collateral ligament was tender to palpation. Tests for stability revealed a borderline Lachman test, a borderline drawer test, and intact collateral ligaments. McMurray's testing was mildly positive. On extension, there was an initial loss of 10 degrees, which, after additional repetitive motion, increased to a loss of 24 degrees. Flexion of the right knee was noted initially as "12-82-110" with objective pain from 82-110 degrees. After repetition, range of motion was noted to be 24-82 degrees. Functional range of motion was noted to be 24-82 degrees of flexion with objective pain at 82 degrees. The Board finds that the record contains competent and credible lay testimony that the Veteran experiences right knee instability. The feelings of instability, giving way, and locking in the right knee come to the Veteran through his senses, and therefore he is competent to describe these sensations. Layno v. Brown, 6 Vet. App. 465 (1994). The medical evidence further suggests that the Veteran has experienced right knee instability throughout the appeal period, as has been shown in VA examinations of July 2008 and April 2010, and VA treatment notes of August 2009 and December 2009, all of which document objective evidence of instability to some degree. In addition, the record indicates that the Veteran was custom-fitted for a right knee brace for stability. Moreover, medical evidence documents another probable meniscal tear; subjective evidence of pain, effusion and episodes of "locking;" and, objective findings of pain, tenderness, swelling, and effusion. As such, the Board finds that the totality of the evidence more nearly approximates right knee instability that is moderate in nature and that the evidence does not conclusively establish improvement such that a 20 percent rating, under either DC 5257 or DC 5258, is no longer warranted. In sum, the weight of the credible evidence demonstrates that the March 2008 reduction of the disability rating for right knee instability from 20 percent to 0 percent was not proper. Therefore, restoration of the 20 percent rating is warranted, effective June 1, 2008. Increased Ratings Next, turning to the Veteran's increased rating claims, the Board observes that the Veteran has been assigned three separate ratings to account for the different manifestations of his overall right knee disability. Accordingly, the Board will consider entitlement to an increased rating for each manifestation. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right knee disability has been rated as 20 percent disabling under DC 5257 for recurrent subluxation or lateral instability that is moderate. 38 C.F.R. § 4.71a, DC 5257 (2010). A 30 percent rating is warranted under DC 5257 for recurrent subluxation or lateral instability that is severe. The Veteran also has a separate 30 percent rating under DC 5261 for limitation of extension of the leg to 20 degrees. 38 C.F.R. § 4.71a, DC 5261 (2010). A 40 percent rating is warranted for limitation of extension of the leg to 30 degrees. A 50 percent rating is warranted for limitation of extension of the leg to 45 degrees. Finally, the Veteran has a separate 10 percent rating under DC 5010 for traumatic arthritis of the right knee. 38 C.F.R. § 4.71a, DC 5010 (2010). Diagnostic Code 5010 directs that the evaluation of traumatic arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2010). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X- ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. X-ray evidence of involvement of two or more major joints or two or more minor joints, with occasional incapacitating exacerbations, will warrant a 20 percent rating. Id. The above ratings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2010). Also applicable to this appeal are Diagnostic Code 5258, which provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; Diagnostic Code 5259, which provides a 10 percent rating for symptomatic removal of semilunar cartilage; and Diagnostic Code 5260 for limitation of flexion of the leg, which provides a 0 percent rating for flexion limited to 60 degrees, a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DCs 5258, 5259, and 5260 (2010). In considering the applicability of other diagnostic codes, the Board finds that DCs 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not reflect that the Veteran has any of those conditions. Specifically, no treatment record or VA examination demonstrates any objective finding of right knee ankylosis, genu recurvatum, or impairment of the tibia or fibula. Based on a careful review of the record, the Board finds that the pertinent evidence does not support entitlement to a rating in excess of 20 percent for right knee instability. The Board finds that the evidence of record, including subjective complaints of pain, swelling, and occasional episodes of "locking," and objective findings of pain and effusion, more nearly approximates a 20 percent rating under DC 5258, which is the maximum allowable rating under that diagnostic code. Alternatively, the Board has considered entitlement to a higher rating under DC 5257 and finds that the evidence does not show recurrent subluxation or instability that is severe so as to warrant entitlement to a 30 percent disability rating. The Board acknowledges that the July 2008 and April 2010 VA examinations and December 2009 and August 2009 VA treatment notes show clinical findings of instability, and further note that the Veteran has been custom fitted for a metal hinged knee brace. However, there is no indication that any instability found was more than moderate, as shown by findings of no more than grade 2 laxity. Moreover, the results of stability testing during the April 2010 examination were noted to be borderline. Accordingly, the Board finds that there is no basis for assigning a rating in excess of 20 percent for right knee instability. Next, the Board finds that the pertinent evidence does not support entitlement to a higher rating under the diagnostic criteria for arthritis. The range of motion findings during the relevant appeals period reveal that the Veteran displayed limited flexion of no more than 84 degrees and limited extension of no more than 24 degrees, which is already assigned a separate 30 percent rating. These findings would not warrant entitlement to ratings in excess of those currently assigned for arthritis. 38 C.F.R. § 4.71a, DCs 5260 and 5261(2010). Since arthritis is rated based on limitation of motion, the Board may not use that same symptom to assign compensable ratings under more than one diagnostic code. Thus, with the Veteran's limitation of extension already separately rated, and as the Veteran's limitation of flexion has already provided the basis for his current rating for arthritis, the Board finds that the Veteran's limitation of motion in the right knee has been considered in all of the currently assigned ratings. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board also finds that the Veteran is not entitled to an increased rating due to functional impairment as a result of pain during flare-ups or pain on repetitive use. Although the Veteran complained of suffering flare-ups of pain that lasted as many as two days, there is no evidence which suggests that, during these flare-ups or on repetitive use, the right knee would be restricted by pain or other factors to only 30 degrees of extension, the criteria for a 40 percent rating, or restricted such that any separate compensable rating for limitation of flexion would be warranted. In fact, the right knee was limited at most to 24 degrees of extension and 84 degrees of flexion upon repetitive motion due to pain during the April 2010 VA examination. Thus, even considering the effects of pain on use, there is no probative evidence that the right knee is so limited in motion as to warrant disability ratings in excess of those currently assigned for arthritis. Nor is there is evidence of fatigue, weakness, incoordination or any other relevant symptom or sign that results in such additional loss of motion of the right knee. Therefore, in the absence of evidence demonstrating that the right knee is otherwise manifested by functional limitation beyond that contemplated in the ratings he is currently assigned, the Board finds that the requirements for an increased rating based on functional loss due to pain are not met. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). In sum, the Board finds that a preponderance of the evidence is against entitlement to a rating in excess of 20 percent for right knee instability, a rating in excess of 10 percent for traumatic arthritis, or a rating in excess of 30 percent for limitation of extension, and those claims are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board does not find a basis to assign a higher or additional separate rating for right knee instability, arthritis, and limitation of extension, it does find that the painful scar noted at the Veteran's August 6, 2007, VA joints examination warrants a separate 10 percent rating pursuant to 38 C.F.R. § 4.118, DC 7804 (2008). Extraschedular Consideration As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), consideration has been given to the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether the Veteran raised them, including § 3.321(b)(1), which governs extraschedular ratings. The evidence indicates that the Veteran is currently working. Although the record indicates that the Veteran has had to miss work due to flare-ups, the Veteran has not indicated any functional impairment or interference with work beyond that which is contemplated by the schedule. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). That is, the rating criteria reasonably describe the Veteran's disability level and symptomatology. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). There has been no showing by the Veteran that the right knee disability causes marked interference with employment or necessitated frequent hospitalization beyond that contemplated by the rating schedule. In the absence of requisite factors, the criteria for submission for assignment of an extraschedular rating for this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in May 2007; rating decisions in November 2007, March 2008, February 2010, and August 2010; a statement of the case in October 2008; and, supplemental statements of the case in December 2009 and February 2010. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the August 2010 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER The March 2008 reduction of the rating for right knee instability from 20 percent to 0 percent, effective June 1, 2008, was not proper, and the 20 percent rating is restored, effective June 1, 2008. Entitlement to a rating in excess of 20 percent for right knee instability is denied. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the right knee is denied. Entitlement to a rating in excess of 30 percent for limitation of extension of the right leg is denied. Entitlement to a separate rating of 10 percent for painful scarring of the right knee is granted, effective August 6, 2007, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs