Citation Nr: 1221237 Decision Date: 06/18/12 Archive Date: 06/29/12 DOCKET NO. 97-29 904 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the residuals of a right knee injury, status post meniscectomy, effective prior to February 22, 2002. 2. Entitlement to a rating in excess of 10 percent for arthritis of the right knee, effective February 22, 2002 through May 3, 2004. 3. Entitlement to a rating in excess of 30 percent for arthritis of the right knee, effective May 4, 2004. 4. Entitlement to a rating in excess of 10 percent for the residuals of a right knee injury, status post meniscectomy, for the period from February 22, 2002, through March 11, 2009. 5. Entitlement to a rating in excess of 30 percent for the residuals of a right knee injury, status post meniscectomy, effective March 12, 2009. 6. Entitlement to a rating in excess of 20 percent for arthritis of the left knee, effective May 4, 2004. 7. Entitlement to a rating in excess of 10 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, for the period from May 4, 2004 through March 11, 2009. 8. Entitlement to a rating in excess of 30 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, effective March 12, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach INTRODUCTION The Veteran served on active duty from March 1971 to June 1984. This case has been before the Board of Veterans' Appeals (Board) on four occasions, the last time in September 2010. Each time, it was remanded for further development. In June 2010, following the development requested up to that time, the VA Appeals Management Center (AMC) in Washington, D.C.; raised the Veteran's rating from 10 to 30 percent, for the residuals of a right knee injury, status post meniscectomy and for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty. Each of those ratings became effective March 12, 2009. In April 2012, following all of the requested development, the AMC confirmed and continued those ratings. Thereafter, the case was returned to the Board for further appellate action. In its September 2010 remand, the Board listed the following issues as being on appeal: 1. Entitlement to a rating in excess of 10 percent for the residuals of a right knee injury, status post meniscectomy, prior to March 12, 2009; 2. Entitlement to a rating in excess of 30 percent for the residuals of a right knee injury, status post meniscectomy, effective March 12, 2009; 3. Entitlement to a rating in excess of 10 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, effective prior to March 12, 2009; and 4. Entitlement to a rating in excess of 30 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, effective March 12, 2009. On further review, the Board finds that the issues should be recharacterized as listed on the title page, to more accurately reflect the ratings and time periods considered by the Board. In February 2008, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to February 22, 2002, the Veteran's residuals of a right knee injury, status post meniscectomy, consisted primarily of pain, crepitus, flexion to no worse than 90 degrees, extension to no worse than 4 degrees, and modest laxity. 2. Effective from February 22, 2002 through May 3, 2004, the Veteran's arthritis of the right knee was manifested primarily by pain, crepitus, flexion to 90 degrees, and extension to zero degrees. 3. Since May 4, 2004, the Veteran's arthritis of the right knee has been manifested primarily by pain, crepitus, flexion to no worse than 30 degrees, and extension to no worse than 5 degrees. 4. For the period from February 22, 2002 through March 11, 2009, the Veteran's service-connected residuals of a right knee injury, status post meniscectomy, have been productive of no worse than slight lateral instability. 5. Since March 12, 2009, the Veteran's service-connected residuals of a right knee injury, status post meniscectomy, have been productive of severe lateral instability. 6. Since May 4, 2004, the Veteran's service-connected arthritis of the left knee has been manifested primarily by pain, crepitus, flexion to at least 60 degrees, and extension to no worse than 5 degrees. 7. For the period from May 4, 2004, through March 11, 2009, the Veteran's service-connected residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, were manifested by no more than slight instability. 8. Since March 12, 2009, the Veteran's service-connected residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, have been productive of severe instability. CONCLUSIONS OF LAW 1. Prior to February 22, 2002, the criteria for a 20 percent rating were met for the residuals of a right knee injury, status post meniscectomy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2011). 2. For the period from February 22, 2002 through May 3, 2004, the criteria were not met for a rating in excess of 10 percent for arthritis of the right knee. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2011). 3. Since May 4, 2004, the criteria have not been met for a rating in excess of 30 percent for arthritis of the right knee. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2011). 4. From February 22, 2002 through March 11, 2009, the criteria were not met for a rating in excess of 10 percent for the residuals of a right knee injury, status post meniscectomy. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2011). 5. Since March 12, 2009, the criteria were not met for a rating in excess of 30 percent for the residuals of a right knee injury, status post meniscectomy. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2011). 6. Since May 4, 2004, the criteria have not been met for a rating in excess of 20 percent for arthritis of the left knee. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2011). 7. From May 4, 2004 through March 11, 2009, the criteria were not met for a rating in excess of 10 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2011). 8. Since March 12, 2009, the criteria have not been met for a rating in excess of 30 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to increased ratings for the residuals of a right knee injury, status post meniscectomy; the residuals of a left knee injury, status post partial medial meniscectomy; and chondroplasty, and arthritis of the knees. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In August 1996, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed the Veteran that in order to establish an increased ratings for his service-connected disabilities, the evidence had to show that such disabilities had worsened and the manner in which such worsening had affected his employment and daily life. 38 U.S.C.A. § 5103(a). VA also provided the Veteran with the criteria for rating those disabilities. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. In this case, VA obtained or ensured the presence of the following relevant evidence: records reflecting the Veteran's treatment by, through, or in conjunction with W. A. H., M.D., from October 1996 to February 2009; records reflecting the Veteran's treatment by, through, or in conjunction with VA from October 1996 to October 2011; the Veteran's records from the Social Security Administration; and the transcript of the Veteran's February 2008 hearing held at the RO before the undersigned Veterans Law Judge. In October 1996, September 1998, April 2003, May and September 2004, March 2006, March 2009, and October 2010, VA examined the Veteran, in part, to determine the level of impairment attributable to his service-connected residuals of a right knee injury, status post meniscectomy; the residuals of a left knee injury, status post partial meniscectomy and chondroplasty; and his arthritis of the knees. The VA examination reports show, generally, that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support any of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis During his February 2008 hearing before the undersigned Veterans Law Judge, the Veteran testified that the ratings have not adequately reflected the level of impairment caused by his service-connected residuals of a right knee injury, status post meniscectomy; his service-connected residuals of a left knee injury, status post partial meniscectomy and chondroplasty; and his service-connected arthritis of the knees. Therefore, he maintains that increased ratings are warranted. After carefully considering those claims in light of the record and the applicable law, the Board agrees with the Veteran, in part, and disagrees, in part. Accordingly, the issues on appeal will be granted and denied to the extent indicated. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2011). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The Veteran's service-connected residuals of a right knee injury, status post meniscectomy and his service-connected residuals of a left knee injury, status post partial meniscectomy and chondroplasty are rated in accordance with the criteria set forth in 38 C.F.R. §§ 4.71a, Diagnostic Code 5257. That Diagnostic Code is applicable to rating knee impairment associated with recurrent subluxation or lateral instability. A 10 percent rating is warranted for slight knee impairment, while a 20 percent rating is warranted for moderate knee impairment. A 30 percent rating is warranted for severe knee impairment. In considering this appeal, the Board notes that in addition to his ratings under 38 C.F.R. §§ 4.71a, Diagnostic Code 5257, the Veteran has a separate ratings for his service-connected arthritis in each knee. The separate rating for his right knee arthritis became effective February 22, 2002, while the separate rating for his left knee arthritis became effective May 4, 2004. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (holding that, while evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided, it is possible for a Veteran to have "separate and distinct manifestations" from the same injury, permitting different disability ratings); Vet. Aff. Op. Gen. Couns. Prec. 23-97 (Multiple Ratings for Knee Disability, 62 Fed. Reg. 63,604 (1997)); Vet. Aff. Op. Gen. Couns 9-98 (Multiple Ratings for Musculoskeletal Disability and Applicability of 38 C.F.R. §§ 4.40, 4.45, and 4.59, 63 Fed. Reg. 56704 (1998)) (holding that separate ratings may be assigned in cases where a service-connected knee disability includes both limitation of motion due to arthritis and instability, provided that the degree of disability is compensable under each set of criteria). Arthritis, established by X-ray findings, is 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, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Therefore, after February 22, 2002 and after May 4, 2004, respectively, the Board will not consider limitation of motion of the right or left knee when considering the rating for the Veteran's service-connected residuals of a right knee injury, status post meniscectomy or the service-connected residuals of a left knee injury, status post partial meniscectomy and chondroplasty or the residuals. Similarly, the Board will not consider evidence of instability when rating the Veteran's arthritis of the knees. To do so after the dates indicated, would constitute the prohibited practice of pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14 (2011). Limitation of flexion of the Veteran's knees is rated in accordance with 38 C.F.R. §§ 4.71a, Diagnostic Code 5260. Limitation of extension of the knees is rated in accordance with 38 C.F.R. §§ 4.71a, Diagnostic Code 5261. A 10 percent rating is warranted when flexion of the knee is limited to 45 degrees or when extension of the knee is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees or when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 45 degrees. Also potentially applicable in rating the Veteran's knee disabilities is 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that diagnostic code, a 20 percent rating is warranted for dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration is also given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the Veteran's ordinary activity. 38 C.F.R. § 4.10, 4.45. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board acknowledges that the Veteran is competent to give testimony about the symptoms of his left and right knee disabilities. For example, he is competent to report his knee pain has gotten worse. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a layman, however, he is not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, his opinion is not dispositive. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Residuals of a Right Knee Injury, Status Post Meniscectomy, Effective Prior to February 22, 2002 Prior to February 22, 2002, the evidence, such as records reflecting the Veteran's VA treatment from August 1996 through January 2001, the reports of the Veteran's October 1996 and January 1998 VA orthopedic examinations, and records reflecting the Veteran's treatment by W. A. H., M.D., from March 1999 to December 2001, show that the Veteran's right knee disability was manifested primarily by complaints of pain, swelling, crepitus, mild deformity, and limitation of motion. The Veteran also reported that at times, his knee would buckle. The reports of the Veteran's October 1996 and January 1998 VA orthopedic examinations, and treatment records from W. A. H., M.D., dated in October and December 2001, show that the Veteran was able to flex his right knee to at least 95 degrees and that he was able to extend it to at least 4 degrees. MRI's taken in October 1996 and September 1997 revealed a torn left lateral meniscus and a torn right medial meniscus, and in March 1997, VA issued the Veteran bilateral hinged knee supports. During the October 1996 VA examination, there was no objective evidence of lateral instability, subluxation, or loose motion. Indeed, during a VA neurologic consultation in October 1996, the Veteran's gait was normal and his muscle power was full at 5/5. Efforts to test such instability during the September 1997 could not be performed due to the Veteran's complaints of pain. However, during VA treatment in August and December 1999, it was noted that the Veteran experienced a modest degree of laxity, and in August 1999, there was fluid collection behind the right knee. In April 2000 and, the Veteran underwent arthroscopic debridement surgery on his right knee, and in May 2001, prior to his second surgery, he had a series injections. However, in August 2001, he required additional arthroscopic debridement surgery, also undergoing repair of a medial meniscus tear. In August 2001, approximately one week after the surgery, the Veteran was able to extend and flex his knee from -5 to 90 degrees. The Veteran's range of knee motion is compatible with no more than a 10 percent rating under Diagnostic Codes 5260 and 5261. However, when the limitation of knee motion is considered with the reports of instability, the issuance of hinged knee braces, the series of right knee injections, and the two arthroscopic right knee surgeries performed during the period, the Board finds the manifestations of the Veteran's are consistent with a moderate level of disability for which a 20 percent rating is warranted under 38 C.F.R. § 4.71(b), Diagnostic Code 5227. At the very least, there is an approximate balance of evidence both for and against the claim that a 20 percent rating is warranted. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, an increased rating is warranted and, to that extent, the appeal is allowed. In arriving, at this decision, the Board has considered the possibility of a still-higher schedular evaluation. However, there were no findings prior to February 22, 2002 to suggest that the Veteran experienced severe impairment or that his range of knee motion was other than that reported above. As such, he did not meet or more nearly approximate the criteria for a rating in excess of 20 percent. Accordingly, for the period prior to February 22, 2002, a 20 percent rating and no more is warranted for the Veteran's service-connected residuals of a right knee injury, status post meniscectomy. Arthritis of the Right Knee, Effective February 22, 2002 through May 3, 2004 During the Veteran's April 2003 VA examination, the Veteran continued to complain of right knee pain and frequent painful flare-ups and that Motrin was no help. He also reported that he had retired from the Post Office on disability. On examination, the Veteran's right knee was tender to palpation, and he demonstrated a range of right knee motion from zero degrees of extension to 90 degrees of flexion. On repetitive motion, he experienced occasional crepitus but no additional limitation of motion. In addition, there was no effusion, abnormal color, or increased temperature. The Veteran's muscle tone and power were within normal limits, and there was no evidence of atrophy which would suggest diminished use of his right lower extremity. 38 C.F.R. § 4.40. In November 2003, W. A. H., M.D., stated that due to knee pain, it would be unwise for the Veteran to return to work at the Post Office or work in any fashion that would require considerable activities involving his knees. During VA treatment in November 2003, it was again noted that the Veteran had a normal gait. Although the Veteran continued to experience pain, limitation of right knee motion, and occasional crepitus during the period from February 22, 2002 through May 3, 2004, such limitations did not meet the criteria for a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261. Therefore, for that period, the 10 percent rating for arthritis of the right knee is confirmed and continued. Arthritis of the Right Knee, Effective May 4, 2004 Since May 4, 2004, the Veteran has continued to be followed for arthritis of the knee by VA and W. A. H., M.D. His right knee has also been examined by VA on numerous occasions to determine the level of impairment attributable to that disorder. Such evidence shows that his right knee continues to be manifested by pain, crepitus on motion, and limitation of motion. The VA examination reports, shows that he has, generally, been able to flex his right knee to at least 30 degrees; and reports from W. A. H., M.D, dated in May 2005 and those during VA treatment in January 2008 show flexion to as much as 100 degrees. Repetitive motion during the VA examinations in May 2004, did not produce additional limitation of motion due to increased pain, fatigue, a lack of endurance, and incoordination. Although the May 4, 2044 VA examination showed a loss of strength in the Veteran's quadriceps and hamstrings, his muscle tone and power were, generally, found to be normal. As noted on evidence such as the report of the July 2005 VA examination, there was no evidence of atrophy indicating disuse of the right lower extremity. During the VA examination in October 2010, the Veteran reportedly could only flex the knee to 5 degrees. However, those measurements appear to be an aberration rather than a chronic deterioration of his range of right knee motion or a particular stage in which his right knee motion deteriorated. Not only does the other evidence recorded since May 4, 2004, show that the Veteran was able to flex his right knee to at least 30 degrees, it should be noted that the VA nursing notes, dated in August and November 2010, show that the Veteran's gait was normal. Indeed, he did not require any ambulatory aids or even need to hold on to the furniture when walking. Moreover, in August 2010, it was noted that he walked frequently. It is incongruous to conclude the an individual whose knee is almost immobile in October 2010 would not have difficulty walking two months before or one month after such a finding. For these reasons, the Board finds the range of right knee motion on the October 2010 VA examination was an aberration. Accordingly, the Board concludes that since May 4, 2004, the Veteran has been able to flex his right knee to at least 30 degrees. On a February 2010 addendum to the report of the Veteran's March 2009 VA examination, it was noted that the Veteran could only extend his right knee to 50 degrees when seated, and then only by using his hands to extend his knee. However, that measurement also appears to be an aberration rather than a chronic deterioration of his range of right knee motion or a particular stage in which his right knee motion deteriorated. Not only do all other treatment records and examination reports since May 4, 2004 show that the Veteran was able to extend the knee to at least 5 degrees, they are negative for any evidence of any associated trauma or disease or treatment or complaints that could cause his right knee extension to deteriorate to 50 degrees in February 2010 . Moreover, during the same examination, he was able to extend the knee to 20 degrees, when standing. In addition, it must be emphasized that the VA nursing notes, dated in August and November 2010, show that the Veteran's gait was normal. At those times, he did not require any ambulatory aids or even need to hold on to the furniture when walking. Indeed, in August 2010, it was noted that he walked frequently. For these reasons, the Board finds the Veteran's ability to extend his knee to 50 degrees in February 2010 was an aberration. In light of the foregoing discussion, the Veteran does not meet the criteria in Diagnostic Codes 5260 or 5261 for a rating in excess of 30 percent for his service-connected arthritis of the right knee, effective May 30, 2004. Accordingly, an increased rating for the time period indicated is not warranted, and to that extent, the appeal is denied. The Residuals of a Right Knee Injury, Status Post Meniscectomy, for the period from February 22, 2002 through March 11, 2009 As noted above, prior to February 22, 2002, the Veteran's right knee disability was rated as a single entity. At that time, the Veteran's right knee disorder was productive of moderate impairment, and 20 percent rating was assigned in accordance with the criteria in 38 C.F.R. § 4.71a, Diagnostic Code 5257. However, effective February 22, 2002, a separate 10 percent rating was assigned for arthritis of the right lower extremity. After that date, the Veteran effectively had a separate rating for instability, characterized as the residuals of a right knee injury status post meniscectomy. As noted above, knee instability is rated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5257. During his April 2003 VA examination, it was noted that the Veteran wore hinged knee braces to keep the knees from buckling or giving way. On examination, he demonstrated no knee instability on active movement, but he did complain of pain when his knees were pulled or twisted. During a Social Security examination in March 2004, the Veteran's joints were reportedly stable. During his May 2004 VA examination, the Veteran reported that his knees gave out and that he had to catch himself before hitting the ground. He also stated that his knees locked when he tried to get up, and that he wore hinged knee braces at work. It was noted, however, that he did not have them on during the examination. On repetitive testing, he demonstrated decided instability of the knees. During his July 2005 VA examination, it was noted that the Veteran wore his hinged knee braces most of the time. On examination, he demonstrated mild instability of the right knee. The finding of mild instability was confirmed during the Veteran's March 2006 VA examination. Also in March 2006, W. A. H., M.D., administered an injection to the Veteran's right knee. Dr. H. stated that the Veteran had no instability in the right knee. During VA treatment in January 2008, there was no instability in the Veteran's right knee. As will be discussed below, the Veteran did demonstrate increased right knee instability during his VA examination on March 12, 2009. Prior to that time, however, the foregoing evidence shows that the Veteran had no more than mild right knee instability. Therefore, for the period from February 22, 2002 through March 11, 2009, the Veteran did not meet or more nearly approximated the criteria for a rating in excess of 10 percent for the residuals of a right knee injury, status post meniscectomy. Accordingly, that rating is confirmed and continued, and to that extent, the appeal is denied. Entitlement to a rating in excess of 30 percent for the residuals of a right knee injury, status post meniscectomy, effective March 12, 2009 During his March 12, 2009 VA examination, the Veteran was found to have severe instability of the right knee. As noted above, the assigned 30 percent rating for that disorder, effective March 12, 2009, is the highest schedular evaluation available rating for that disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under such circumstances, the Board will consider the possibility of assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The extraschedular considerations will be discussed below. Entitlement to a rating in excess of 20 percent for arthritis of the left knee, effective May 4, 2004 As noted above, the Veteran was assigned separate ratings for arthritis of the left knee and for instability of the left knee, effective May 4, 2004. Therefore, the rating for arthritis of the left knee will commence with that date. A review of the evidence discloses that the Veteran's arthritis of the left knee is manifested primarily by pain, crepitus, and limitation of motion. The VA examination reports, such as those performed on May 4, 2004 and in July 2005 and February 2010, as well as the record reflecting the Veteran's VA treatment in January 2008, shows that the Veteran has, generally, been able to flex his right knee to at least 60 degrees. Repetitive motion during the VA examinations in May 2004, did not produce additional limitation of motion due to increased pain, fatigue, a lack of endurance, and incoordination. Although the May 4, 2044 VA examination showed a loss of strength in the Veteran's quadriceps and hamstrings, his muscle tone and power were, generally, found to be normal. As noted on evidence such as the report of the July 2005 VA examination, there was no evidence of atrophy indicating disuse of the right lower extremity. During the VA examination in October 2010, the Veteran reportedly could only flex his left knee to 3 degrees. However, that measurement appears to be an aberration, rather than a chronic deterioration of his range of right knee motion or a particular stage in which his right knee motion deteriorated. Not only does the other evidence recorded since May 4, 2004, show that the Veteran was able to flex his left knee to at least 60 degrees, it should be noted that the VA nursing notes, dated in August and November 2010, show that the Veteran's gait was normal. Indeed, he did not require any ambulatory aids or even need to hold on to the furniture when walking. Moreover, in August 2010, it was noted that he walked frequently. It is incongruous to conclude the an individual whose knee is almost immobile in October 2010 would not have difficulty walking two months before or one month after such a finding. For these reasons, the Board finds that the range of left knee motion recorded during the October 2010 VA examination was an aberration. Accordingly, the Board concludes that since May 4, 2004, the Veteran has been able to flex his left knee to at least 30 degrees. A further review of the evidence, such as the report of his July 2005 VA examination, shows that the Veteran has generally been able to extend his knee to at least 5 degrees. On a February 2010 addendum to the report of the Veteran's March 2009 VA examination, it was noted that the Veteran could only extend his left knee to 50 degrees when seated, and then only by using his hands to extend his knee. However, that measurement also appears to be an aberration rather than a chronic deterioration of the Veteran's range of left knee motion or a particular stage in which his left knee motion deteriorated. Not only do all of the other treatment records and examination reports since May 4, 2004 show that the Veteran has been able to extend the knee to at least 5 degrees, they are negative for any evidence of any associated trauma or disease or treatment or complaints that could cause or are otherwise associated with a deterioration of his right knee extension to 50 degrees. Moreover, during the same February 2010 examination, he was able to extend the knee to 20 degrees, when standing. In addition, it must be emphasized that the VA nursing notes, dated in August and November 2010, show that the Veteran's gait was normal and that he walked frequently. It is incongruous to conclude that an individual who could extend his knee to only 20 degrees could walk with a normal gait or go for frequent walks. For these reasons, the Board finds the February 2010 report constituted an aberration when it noted that the Veteran could only extend his knee to 50 degrees, when sitting, or to 20 degrees when standing. Accordingly, the Board concludes that effective May 4, 2004, the Veteran was able to extend his knee to at least 5 degrees. In light of the foregoing discussion, the Veteran does not meet or more nearly approximate the criteria in Diagnostic Codes 5260 or 5261 for a rating in excess of 30 percent for his service-connected arthritis of the left knee, effective May 4, 2004. Accordingly, an increased rating for the time period indicated is not warranted, and to that extent, the appeal is denied. Entitlement to a rating in excess of 10 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, for the period from May 4, 2004 through March 11, 2009 As noted above, the Veteran was assigned separate ratings for arthritis of the left knee and for instability of the left knee, effective May 4, 2004. Therefore, the rating for instability will commence with that date, as instability was considered in a single rating prior to that date. As above, the applicable Diagnostic Code is 5257. During his May 2004 VA examination, the Veteran reported that his knees gave out and that he had to catch himself before hitting the ground. He also stated that his knees locked when he tried to get up, and that he wore hinged knee braces at work. It was noted, however, that he did not have them on during the examination. On repetitive testing, he demonstrated decided instability of the knees. During his July 2005 VA examination, it was noted that the Veteran wore his hinged knee braces most of the time. On examination, he demonstrated mild instability of the left knee. During VA treatment in January 2008, there was no instability in the Veteran's left knee. Although the Veteran experienced left knee instability prior to March 12, 2009, the foregoing evidence shows that it was productive of no more than mild instability. Therefore, for the period from May 4, 2004 through March 11, 2009, the Veteran did not meet or more nearly approximate the criteria for a rating in excess of 10 percent for that disorder. Accordingly, that rating is confirmed and continued, and to that extent, the appeal is denied. Entitlement to a rating in excess of 30 percent for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, effective March 12, 2009 During his March 12, 2009 VA examination, the Veteran was found to have severe instability of the right knee. As noted above, the assigned 30 percent rating for that disorder, effective March 12, 2009, is the highest schedular evaluation assigned for that disorder. Under such circumstances, the Board will consider the possibility of assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The extraschedular considerations will be discussed below. Additional Considerations In arriving at the foregoing decisions, the Board is mindful that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. That is, the rating for disability of a particular limb may not exceed the rating for that limb if it was no longer present. For example, the combined evaluations for disabilities below-the-knee shall not exceed the 40 percent evaluation for a below-the-knee amputation under 38 C.F.R. § 4.71a, Diagnostic Code 5165. A 40 percent rating may be further combined with evaluation for disabilities above the knee but not to exceed the above the knee amputation elective level. Also in arriving at the foregoing decisions, the Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected arthritis of the knees; his service-connected residuals of a right knee injury, status post meniscectomy; and his service-connected residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, 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 is found to be inadequate, the Board must determine whether the Veteran's 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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned ratings. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). Moreover, the Veteran and his representative have not identified, and the Board has not found, any factors which may be considered to be exceptional or unusual with respect to the service-connected arthritis of the knees; the service-connected residuals of a right knee injury, status post meniscectomy; and/or the service-connected residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty. Although the Veteran has had arthroscopic surgery on each of his knees two times during the appeal, the record does not show that he has required frequent hospitalizations for any of his service-connected knee disorders. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. In short, the evidence does not support the proposition that any of the Veteran's service-connected knee disorders present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). ORDER Subject to the law and regulations governing the award of monetary benefits, entitlement to a 20 percent rating is granted for the residuals of a right knee injury, status post meniscectomy, effective prior to February 22, 2002. Entitlement to a rating in excess of 10 percent is denied for arthritis of the right knee, effective February 22, 2002 through May 3, 2004. Entitlement to a rating in excess of 30 percent is denied for arthritis of the right knee, effective May 3, 2004. Entitlement to a rating in excess of 10 percent is denied for the residuals of a right knee injury, status post meniscectomy, for the period from February 22, 2002 through March 11, 2009. Entitlement to a rating in excess of 30 percent is denied for the residuals of a right knee injury, status post meniscectomy, effective March 12, 2009. Entitlement to a rating in excess of 20 percent is denied for arthritis of the left knee, effective May 4, 2004. Entitlement to a rating in excess of 10 percent is denied for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, for the period from May 4, 2004 through March 11, 2009. Entitlement to a rating in excess of 30 percent is denied for the residuals of a left knee injury, status post partial medial meniscectomy and chondroplasty, effective March 12, 2009. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs