Citation Nr: 1105288 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 06-14 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 10 percent for a right knee disability with degenerative joint disease (DJD) and slight limitation of motion, status post medial meniscectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from July 1971 to July 1975. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claim for a rating in excess of 10 percent for his service-connected right knee disorder. In his substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge at his local VA office. However, in a June 2006 submission to the Board, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.702(e) (2010). In a May 2009 decision, the Board denied the Veteran's claim for an increased rating for his service-connected right knee disorder. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2010, the Secretary of Veterans Affairs and the Veteran, through his attorney, filed a Joint Motion for Remand (Joint Motion) to vacate the Board's decision with regard to the claim at issue. The Joint Motion was accepted by the Court, and the case was then returned to the Board for further consideration consistent with the Joint Motion. In March 2010, to comply with the provisions of the Joint Motion, the Board remanded the Veteran's claim to provide an additional VA medical examination to fully address the issues raised by the Joint Motion, among other issues. That examination was conducted in June 2010, and the Veteran's claim has been returned to the Board for further adjudication. FINDINGS OF FACT 1. For the Veteran's right knee right knee disability with degenerative joint disease (DJD) and slight limitation of motion, status post medial meniscectomy shows evidence of arthritis affecting a single major joint, but does not result in either limitation of motion of flexion to 45 degrees or less, or limitation of extension to 10 degrees or less. The degree of additional functional loss due to pain, weakness, and difficulty standing or walking for extended periods, does not show additional functional loss in terms of limitation of the range of motion of the Veteran's right knee. 2. The Veteran's right knee disability does not manifest with a compensable level of right knee instability. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right knee disability with degenerative joint disease (DJD) and slight limitation of motion, status post medial meniscectomy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5257, 5259, 5261 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of the VCAA letter from the agency of original jurisdiction (AOJ) to the Veteran dated in August 2004. That letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his request for a higher rating for his service- connected right knee disability; (2) informing him about the information and evidence VA would seek to provide; and (3) informing him about the information and evidence that he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the April 2010 letter from the AOJ further advised the Veteran of the elements of a disability rating and an effective date for his claim. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Concerning his claim for an increased rating for his right knee disability, in Vazquez-Flores v. Peake, 22 Vet. App. 37, 43-44 (2008), the Court held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the Veteran that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the Veteran's employment and daily life. The Court also required notice as to the requirements of the relevant Diagnostic Code. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently vacated the Court's decision in Vasquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez Flores v. Shinseki, 580 F.3d 1270, 1277-78 (Fed. Cir. 2009). The Veteran was provided with general notice as to the requirements for an increased rating for the right knee in the August 2004 notice letter. Furthermore, the Veteran and his representatives have submitted statements to VA which show that he is clearly aware of the general criteria for proving a claim for an increased rating for the right knee. See the Veteran's notice of disagreement (NOD) of December 2004, statements of July 2005, May and June 2006, September 2006, and substantive appeal of April 2006; see also the Informal Briefs of Appellant in Appealed Case (Briefs) of April 2009 and January 2011, and the Joint Motion of January 2010. Finally, the October 2004 rating decision, the March 2006 SOC, and the June and September 2006, and November 2010 supplemental SOCs (SSOCs), as well as the May 2009 Board decision and March 2010 Board remand, all provided the Veteran with a review of the criteria which are relevant to deciding his disability rating for his service-connected right knee disability. Given this record, any error in notice has been in the provision of notice in excess of what is required by the governing law. Therefore, the Veteran has clearly been adequately informed of the evidence necessary to support his claim to enable his full participation in his case. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). Therefore, the Board concludes the Veteran has been provided with all required notice for his claim. With regard to the timing of his VCAA notice with regards to the service-connected right knee disability claim at issue, the Board sees the AOJ did not provide the Veteran with all general Dingess notice prior to the October 2004 determination on appeal. But in Pelegrini II, the Court clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of the claim, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the timing error was cured. After initially providing complete Dingess-compliant notice in April 2010, the AOJ readjudicated the Veteran's claim via the November 2011 SSOC. Therefore, the timing defect in the notice regarding the Veteran's right knee claim has been rectified. Prickett, 20 Vet. App. at 376. In addition, the Veteran has never alleged how any timing error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of his VCAA notice. See Shinseki, supra. In addition to notification, VA is required to assist the Veteran in finding evidence to support his claim. See 38 U.S.C.A. § 5103A. The AOJ has secured service treatment records (STRs), VA treatment records, and three VA medical examinations regarding the severity of his service-connected right knee disability. The Veteran has submitted numerous personal statements. Finally, the Board notes that the Veteran submitted statements dated in July 2005 and May 2006 indicating the existence of relevant private treatment records. The VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a). However, a claimant is required to provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records, and the approximate time frame covered by the records. 38 C.F.R. § 3.159(c)(1)(ii). The duty to assist is not a one-way street; a claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the Veteran, not a duty to prove his claim while the Veteran remains passive); accord Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran has not provided the necessary information for VA to identify the location of the private medical records. In fact, the Veteran has twice indicated that no further evidence exists. See the Veteran's statements of February and May 2010. Thus, the Board concludes that the duty to assist the Veteran in gathering information to advance his claim has been met. Compliance with Prior Board Remands and the Joint Motion The Board is also satisfied as to substantial compliance with its March 2010 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand directed the AOJ to provide Dingess notice, which was provided in the April 2010 notice letter. The AOJ was directed to request that the Veteran indicate if he had received further treatment and obtain the relevant records. The Veteran responded in May 2010 that he had no further relevant evidence to submit, such that this directive has been complied with. The AOJ was also directed to obtain complete current VA medical treatment records for the Veteran. These were obtained and attached to the Veteran's case file in April 2010. The AOJ was also directed to provide a new VA medical examination which complied with the issues raised by the Joint Motion. The AOJ provided a VA orthopedic examination to the Veteran in June 2010. At that time, the examiner addressed the Veteran's right knee disability range of motion, instability, and functional impairment, as well as the effects of flare-ups. The Board notes that the VA medical examiners have indicated that the specific degrees of additional disability at the time of a flare-up would require speculation; however, the examiners have all addressed the Veteran's description of periods where his right knee disability is more severe, thereby specifically reviewing the Veteran's described symptoms of flare-ups. Further, both the July 2006 and June 2010 VA medical examiners engaged in a repetitive motion test, but did not find further restrictions of the range of motion afterwards. As such, the VA medical examinations of record have addressed all relevant manifestations of the Veteran's disability, such that the Veteran has been provided with an adequate examination to rate his service- connected right knee disability. See 38 C.F.R. § 4.2 Finally, the Board requested that the AOJ provide a final adjudication after complying with the remand directives and prior to returning the claims folder to the Board. This was accomplished through the supplemental statement of the case (SSOC) of November 2010. Therefore, as the AOJ has provided all necessary notification, obtained all available relevant records, provided the Veteran with a complete VA medical examination and opinion, and provided a final AOJ adjudication of the Veteran's claims, the Board concludes that all of the prior remand directives related to the claims on appeal have been complied with. As such, no further development of the Veteran's claims is necessary. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The right knee disability claim currently on appeal arises from a claim for an increased rating received by the AOJ in August 2004. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). That is to say, the Board must consider whether there have been times when his disability has been more severe than at others. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, August 2003) until the VA makes a final decision on the claim. See Hart, supra; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Disabilities of the musculoskeletal system are based on the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. As such, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Arthritis due to trauma must be established by x-ray evidence. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Competent medical evidence may mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis -Right Knee Disability with Degenerative Joint Disease Status Post Medial Meniscectomy In a November 1975 rating decision, the Veteran was granted service connection for the residuals of a right knee meniscectomy with a disability rating of 10 percent. 38 C.F.R. § 4.71a. The Veteran's right knee disability is currently rated under Diagnostic Code 5010-5260. The Veteran currently seeks a rating in excess of 10 percent for his right knee disability. The Veteran was provided with a VA medical examination in October 2004, which found that the Veteran was experiencing degenerative joint disease. This diagnosis was supported by an x-ray conducted in August 2004, which found the Veteran to be experiencing mild degenerative changes in his right knee joint. See also the VA medical examination of July 2006. Degenerative arthritis is rated under Diagnostic Code 5003. See 38 C.F.R. § 4.71(a). Degenerative arthritis, when established by x-ray findings, in turn is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved - which, here, are Diagnostic Code 5260 for flexion and Diagnostic Code 5261 for extension. 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, Diagnostic Code 5003. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Concerning this, the evidence of record does not support a higher rating beyond noncompensable under Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.7. The VA medical examination of October 2004 found some discomfort at full extension with range of extension and flexion of 0 to 120 degrees. The July 2006 VA medical examination also provided a range of motion test, and specifically found nonpainful extension and flexion for the Veteran's right knee of 5 to 120 degrees, respectively. This was only slightly worse than the Veteran's October 2004 VA medical examination. The Veteran was provided with a third VA medical examination in June 2010, with found extension and flexion from 0 degrees to 100 degrees. As such, although there is some variation in the Veteran's range of motion, there is no evidence of a compensable limitation of flexion to 45 degrees or extension limited to 10 degrees for the right knee. Thus, under application of the standards of Diagnostic Codes 5260 and 5261, the limitations to the Veteran's extension and flexion provide for a non-compensable rating. In regards to additional functional loss affecting the Veteran's right knee, at the time of the October 2004 VA medical examination, the examiner noted that the Veteran would experience pain and swelling with repetitive use, which further limited his ability to stand. However the October 2004 examiner concluded that an attempt to determine further degrees of functional loss would be speculative. The examiner indicated that the Veteran had begun to work as a teacher, which allowed him to be more selective about the time he spent on his feet and that his knee was less symptomatic due to this. The examiner also noted that the Veteran's right knee also keeps him from certain recreational activities, and that bicycle riding is the only physical activity that he can engage in without aggravating his knee. The examiner noted that the Veteran took over-the-counter medication for his pain symptoms. The October 2004 VA medical examination indicated that the Veteran experienced swelling and tenderness, as well as crepitus with motion; however, the VA medical examiner found that the Veteran was able to perform his activities of daily living without difficulty, and the Veteran had normal gait and posture. The July 2006 VA medical examination also noted the Veteran's career change from the post office to teaching. The Veteran experienced pain and swelling which increased with walking. The Veteran indicated that his knee problems did not interfere with his work. Furthermore, at the time of the July 2006 VA medical examination, the examiner also noted a degree of varus deformity. The July 2006 VA examiner noted that the Veteran might experience additional functional loss during a flare-up, but did not find additional restriction to the Veteran's range of motion of the right knee after repetitive motion, indicating that any further limitation of the range of motion would be speculative. A November 2008 VA medical treatment record shows that the Veteran received treatment for his right knee at that time, which was experiencing swelling and pain with full extension, but good range of motion. The June 2010 VA examiner noted that the Veteran continued to experience pain, and that he is unable to stand for more than 60 minutes, or walk more than 100 yards, whereupon the Veteran must stop and stretch. The Veteran continued to take over-the-counter medication for pain control. The Veteran reported weakness and stiffness, as well as experiencing swelling in the right knee. The examiner also noted a mild to moderate degree of pain throughout the range of motion, but no swelling. The June 2010 examiner noted that the Veteran had been diagnosed with torn cartilage and a torn ligament in his right knee. The June 2010 examiner further noted that the Veteran experienced throbbing and aching pain, with no radiation, as well as swelling. There continued to be crepitus through the range of motion, and the examiner also noted a genu varus deformity. Further, the examiner noted that the Veteran experienced weakness and that his right knee occasionally gave way. The examiner indicated that the Veteran was functionally independent in terms of his activities of daily living, and that his pain sometimes interferes with his work, but not enough to actually incapacitate him from his work. However, the June 2010 VA medical examiner also found that additional range of motion loss during a flare-up would be speculative. Finally, the June 2010 examiner found that repetitive motion again did not induce further limitation of the range of motion. In addition, as to functional loss, the Board acknowledges the record of statements from the Veteran with regards to functional loss regarding his right knee, in terms of leaving his job as a postal employee to take a lower-paying job as a teacher due to his right knee disability. See the Veteran's December 2004 NOD, the statements of July 2005, May and June 2006, and substantive appeal of April 2006; see also the Informal Brief of Appellant in Appealed Case (Brief) of April 2009. As such, the Board acknowledges that the Veteran experiences pain and crepitus in his right knee which may be aggravated by flare- ups. However, none of this evidence shows that the Veteran's pain or other limitations of motion of his right knee causes him to experience additional restrictions of the range of motion of the Veteran's right knee, such that a compensable rating would be warranted under Diagnostic Codes 5224 or 5228. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. The Board acknowledges that the VA medical examinations were unable to determine additional restrictions of the range of motion due to potential flare-ups; however, this was adequately tested with repetitive motion to determine if any further restrictions of the range of motion were found. See the VA medical examinations of July 2006 and June 2010. As such, there is no objective clinical indication the Veteran has symptoms causing functional limitation of the Veteran's range of motion to a degree that would support a compensable evaluation for the Veteran's service-connected right knee disability. Id. However, as noted above, the Veteran has been diagnosed with degenerative arthritis in his right knee. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. For purposes of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Given that the Veteran's positive diagnosis of arthritis has been confirmed by x-ray evidence, the Veteran is entitled to a 10 percent rating under application of Diagnostic Code 5003, but no more. 38 C.F.R. § 4.71a. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505, 510 (2007), the Board has considered whether a staged rating is appropriate. However, although there is some evidence of additional symptoms of functional loss, this worsening has not sufficiently impacted his limitation of motion at any time during the course of his pending appeal to warrant a higher rating. Therefore a staged rating is not warranted for the Veteran's right knee arthritis. Accordingly, the Board concludes that the preponderance of the evidence is against a disability rating in excess of 10 percent for the Veteran's right knee arthritis. 38 C.F.R. § 4.3. Analysis - Separate Manifestations of the Veteran's Right Knee Disability The January 2010 Joint Motion noted that the Veteran's claim also contained evidence of instability and symptomatic removal of the cartilage which should be considered under Diagnostic Codes 5257, and 5259. 38 C.F.R. § 4.71a. In this regard, the Board notes that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Therefore, the separate manifestations of the Veteran's right knee disability will be addressed through the following analysis. As indicated by the January 2010 Joint Motion, the Veteran's right knee disability stems from an in-service medial meniscectomy. See the November 1975 rating decision. The meniscus is a disk of fibro-cartilage at the knee joint, and a meniscectomy is a surgery which involves an excision of the meniscus. See Dorland's Illustrated Medical Dictionary 1151 (31st ed. 2007). Further, the Veteran's July 2004 x-ray found that the Veteran was experiencing suprapatellar joint effusion and mild narrowing of the medial compartment. The October 2004 examiner also noted the narrowing of the medial joint space. As such, the Veteran's disability also involves removal of cartilage which may considered under Diagnostic Code 5259. Diagnostic Code 5259 provides for a maximum 10 percent rating for symptomatic knee disability following removal of the semilunar cartilage. 38 C.F.R. § 4.71a. Diagnostic Code 5259 does not present specific guidance as to the nature of applicable symptoms; however, the Veteran's limitation on the range of motion is already fully considered under the analysis above, nor does Diagnostic Code 5259 allow for a rating in excess of that allowed for the Veteran's arthritis and limitations of the range of motion. However, the VA Office of General Counsel has interpreted that Diagnostic Code 5259 "requires consideration of [38 C.F.R. §§] 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion." VAOPGCPREC 9-98 at 5 (Aug. 14, 1998). Thus, as this code contemplates limitation of motion, for which the Veteran has already been compensated, the Board notes that a separate rating under Diagnostic Code 5259 would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2009); see also Esteban v. Brown, 6 Vet. App. at 261-62. As noted by the Joint Motion, the July 2006 VA medical examination found that the Veteran had a positive anterior drawer sign and a positive Lachman test, and diagnosed the Veteran with a torn anterior cruciate ligament. As such, the Board must also consider whether a further rating under Diagnostic Code 5257 is appropriate. According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of this joint, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45 (2005), pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes 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. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of 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. At the time of the October 2004 VA medical examination, the examiner found that the Veteran's knee was stable medially, laterally, as well as anteriorly and posteriorly, although there was some discomfort upon manipulation of the knee. The examiner also noted that the Veteran had used a brace in the past, although he no longer used this device because he found it inconvenient. As noted above, the July 2006 VA medical examination found positive anterior drawer and Lachman's tests and noted that the Veteran may benefit significantly from the use of a knee brace, although the Veteran continued not to utilize any "braces or aids to ambulation." The examiner also noted that there has been no dislocation or recurrent subluxation. A November 2008 VA medical treatment record indicated that the Veteran was not experiencing and locking or giving way. The June 2010 VA medical examiner noted that the Veteran's right knee gives way on occasion, but does not lock up. However, at that time, the examiner found that the medial and lateral collateral ligament tests showed no abnormal movement of the anterior cruciate ligament. Furthermore, the Lachman, drawer, and McMurray tests were all negative at that time, and the examiner noted that the Veteran continued to not use a brace. As such, the June 2010 VA medical examiner indicated that the giving way was due to weakness in the joint and not to lateral instability or subluxation. The Veteran also indicated in his July 2005 and May 2006 statements that his treating physicians had indicated that there was nothing they could do to tighten his knee. He also indicated that he had worn a knee brace at some point, but found it inconvenient due to damage to his clothes. Id. Finally, the Veteran has also indicated that his July 2006 VA medical examiner found subluxation, contradicting what is recorded in the examination report. The Board acknowledges that the Veteran is competent to describe what a medical examiner has told him. Layno, 6 Vet. App. at 469; see also 38 C.F.R. § 3.159(a)(2). However, the Veteran's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Washington v. Nicholson, 19 Vet. App 362, 368 (2005). When weighing lay evidence such as this, the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citing State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992)). Personal interest may also affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this instance, the Veteran's interest in describing the severity and affects of his right knee disability are liable to be influenced by his direct financial interest in his rating, resulting in his description presenting a more extreme view of his service-connected disability than is warranted. As such, the Board finds that the Veteran's statements regarding instability and subluxation, in consideration of his self-interested report, of reduced credibility. On the other hand, the July 2006 VA medical examination was conducted by a medical professional, with a directive to specifically review the extent of the effects of the Veteran's service-connected right knee disability. Further, there is a presumption of regularity to agency actions, as the Court stated in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "principles of administrative regularity dictate a presumption that Government officials have properly fulfilled their official duties." That is, absent clear and convincing evidence to the contrary, the official acts of public officials are presumed to have discharged their duty. See also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Therefore, the July 2006 VA medical examination report is considered a credible report of the examiner's findings at that time. Finally, the July 2006 examiner's report is supported by the conclusions of the October 2004 and June 2010 VA medical examinations which also did not find subluxation or lateral instability. As such, the Board concludes that the credible evidence of record shows the Veteran's right knee disability does not manifest with lateral instability or subluxation. As such, the only evidence of instability is the July 2006 VA medical examination, which found evidence of positive anterior drawer and Lachman's tests and the old tear of the anterior cruciate ligament; however, there is no evidence that any instability found at the time of the July 2006 VA medical examination or that the diagnosis of an old tear of the anterior cruciate ligament causes instability which rises to the level of a compensable rating under Diagnostic Code 5257. Furthermore, although there is evidence that a brace may assist the Veteran in managing his right knee disability, the evidence of record indicates that any instability found does not require the use of a brace to reduce the Veteran's instability. Finally, the other VA medical examinations of October 2004 and June 2010 both found that the Veteran's right knee was stable. Simply put, the single indication of positive Lachman and anterior drawer tests with a diagnosis of an old tear of the anterior cruciate ligament at the time of the July 2006 VA medical examination, does not provide evidence of even "slight" lateral instability to allow for a separate compensable rating under Diagnostic Code 5257. 38 C.F.R. § 4.3. Although there is evidence of a residual scar, indicated as a 6 inch scar with minimal adherence by the June 2010 VA medical examiner, the Board concludes that the Veteran's residual scar is not deep (does not affect underlying tissue) or cause limited motion, such that a compensable rating is not warranted under Diagnostic Code 7801. His scar does not affect an area of 144 inches or greater and a compensable rating under Diagnostic Code 7802 is not appropriate. His scar is not unstable and does not merit a compensable rating under Diagnostic Code 7803. Finally, there is no evidence that his scar is painful on examination, nor does it affect any other system such that further consideration is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. There is no evidence of any diagnosis of anklyosis (Diagnostic Code 5256), or dislocated cartilage (Diagnostic Code 5257), or impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263) affecting the Veteran's right knee. Therefore these Diagnostic Codes are not for application. See Butts v. Brown, 5 Vet. App. 532, 540 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505, 510 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the Board finds the Veteran's symptoms have remained constant throughout the course of the period on appeal, and, as such, a staged rating is not warranted. In summary, the Board finds that the evidence supports a separate 10 percent disability rating, but no greater, for the symptomatic residuals of a right knee medial meniscectomy. 38 C.F.R. § 4.3. Extraschedular Rating for Veteran's Service-Connected Right Knee Disability The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). First, the AOJ or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). In this case, the Veteran's functional impairment shown in the record caused by his right knee disability are specifically incorporated in the rating criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202 at 206. With the applicable rating criteria requiring consideration of these elements of the Veteran's disability, an extraschedular analysis is moot. However, even if the Board were to concede that the rating criteria do not address all of the effects of the Veteran's service-connected right knee disability, the evidence of record does not show any exceptional or unusual circumstances, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. The Veteran has indicated that he left a postal position due to his right knee disability and difficulty walking the distances required, and had to take a lower-paying teaching position. See the Veteran's December 2004 notice of disagreement (NOD), the statements of July 2005, May and June 2006, and substantive appeal of April 2006; see also the Informal Brief of Appellant in Appealed Case (Brief) of April 2009, and the VA medical examinations of October 2004, July 2006, and June 2010. However, it appears that the Veteran has been employed for some time prior to his current claim in his current capacity as a teacher. Despite some evidence that he still experiences right knee-related problems during work, there is no evidence that his right knee has caused him to miss work at his current employment or to reduce his earnings at his current employment such that an additional extra-schedular rating would be appropriate. In fact, the October 2004 VA medical examination indicated that his knee is "not as symptomatic" at his current employment, and the most recent VA medical examination specifically noted that the Veteran indicated that his right knee "does not incapacitate him from work." Further, there is no evidence of inpatient treatment or hospitalization for his right knee disability. As such, there is no evidence of exceptional or unusual circumstances, such as interference with work or frequent hospitalization to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. Therefore, the evidence of record simply does not warrant an extraschedular rating. In reaching this conclusion, the Board notes that, 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; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating in excess of 10 percent for the Veteran's right knee disability with degenerative joint disease (DJD) and slight limitation of motion, status post medial meniscectomy is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs