Citation Nr: 1300922 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-00 154A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for left leg varicose veins. 2. Entitlement to an evaluation in excess of 30 percent for left knee impairment. 3. Entitlement to an evaluation in excess of 10 percent for left knee degenerative changes with limitation of motion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to April 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A Travel Board hearing was scheduled for December 2008. However, the hearing was cancelled by the Veteran. The hearing request is deemed to have been withdrawn. See generally 38 C.F.R. § 20.704 (2012). In September 2009, the Board remanded this case for further evidentiary development. The development is complete and the case has been returned to the Board for consideration. Pursuant to the Board's September 2009 remand, the RO developed and adjudicated the claim for a total rating based on individual unemployability (TDIU). In a May 2012 rating decision, the RO denied the claim for TDIU. No appeal has been received in regard to this determination. Thus, the Board finds that there is no remaining controversy for Board consideration. Additionally, following the Board's September 2009 remand, the RO granted a separate disability evaluation for left knee degenerative changes with limitation of motion. The Board has reframed the issues on appeal to more accurately reflect the claims. Lastly, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Also, the record shows that the VA treatment records obtain through CAPRI (Compensation and Pension Records Interchange) located in the Virtual VA file were considered by the RO in the adjudication of the claims. See Supplemental Statement of the Case dated in May 2012. FINDINGS OF FACT 1. The Veteran's varicose veins have not been manifested by stasis pigmentation or eczema at any time during this appeal. 2. Left knee impairment (other than limitation of motion) is manifested by severe subluxation, but not ankylosis, or "locking," pain and joint effusion. 3. Prior to January 19, 2007, the Veteran had left knee flexion better than 30 degrees and full extension. 4. From January 19, 2007, to January 26, 2012, the Veteran had flexion functionally limited to 20 degrees or less due to pain, fatigue, and weakened movement, but with full extension. 5. From January 26, 2012, the Veteran had left knee flexion better than 30 degrees and full extension. CONCLUSIONS OF LAW 1. An evaluation in excess of 20 percent for varicose veins is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Codes 7120 (2012). 2. An evaluation in excess of 30 percent for left knee impairment is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40. 4.59. 4.71a, Diagnostic Codes 5257 (2012). 3. An evaluation in excess of 10 percent for left knee degenerative changes with limitation of motion prior to January 19, 2007, is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40. 4.59. 4.71a, Diagnostic Codes 5003-5260 (2012). 4. An evaluation of 20 percent, but no greater, for left knee degenerative changes with limitation of motion, for the period from January 19, 2007, to January 26, 2012, is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40. 4.59. 4.71a, Diagnostic Codes 5003-5260 (2012). 5. An evaluation in excess of 10 percent for left knee degenerative changes with limitation of motion from January 26, 2012, is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40. 4.59. 4.71a, Diagnostic Codes 5003-5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA satisfied its duty to notify. The Veteran filed his claim in November 2004. While he was provided initial VCAA letters in March and April 2005, he was not provided fully adequate VCAA notice prior to the June 2005 rating decision on appeal. However, the Board notes VA provided the Veteran with fully adequate VCAA notice in June 2006 and May 2008 letters. Following provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in May 2012. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice. VA further satisfied its duty to assist the Veteran. VA obtained all relevant VA and private medical records, to include those VA treatment records requested by the Board in its prior remand. These records have been associated with the claims files. VA further afforded the Veteran appropriate and adequate medical examinations in response to the claims herein decided. The Board previously reviewed the claims and determined that additional development was required. The Board has reviewed the record and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. II. Evaluation of Left Leg Varicose Veins and Left Knee Disability The Veteran seeks an evaluation in excess of 20 percent for left leg varicose veins; in excess of 30 percent for left knee impairment (recurrent subluxation); and in excess of 10 percent for left knee degenerative changes with limitation of motion. He reports left leg and knee pain, worse with walking or stairs. His wife reported that the Veteran has left leg pain, walks with a limp, and uses a cane. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. General Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Finally, the Board notes that the regulations provide 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. See 38 C.F.R. § 4.68 (2011). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Varicose Veins The RO granted in June 2005 service connection for left leg varicose veins at the 10 percent disability level, effective from November 9, 1998; thereafter, in March 2007, the RO increased the evaluation to 20 percent, effective from November 29, 2004 (date of claim for increase). The Veteran's varicose vein disability is evaluated under Diagnostic Code 7120 as revised following regulatory changes that became effective in January 1998. Under Diagnostic Code 7120, a 20 evaluation is warranted for persistent edema, incompletely relieved by elevation of an extremity, with or without beginning stasis pigmentation or eczema; a 40 percent evaluation is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; a 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and a maximum 100 percent rating is warranted for massive, board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120 (in effect from January 12, 1998). Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for left leg varicose veins. Neither the lay nor the medical evidence of record more nearly reflects findings for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 38 C.F.R. § 4.7. See also Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. Report of VA examination dated in February 2005 reflects complaints of "more pain and swelling" of the left lower extremity. The Veteran described a mild, daily aching of the left calf aggravated by walking or standing greater than 10 minutes. He reported daily use of compression hose for the past 3 years. He denied prior surgery, eczema, leg ulcer, and venous thrombosis. He denied improvement with elevation. The Veteran noted that he worked as cook and stood on his legs for 8 hours a day. Physical examination showed normal skin and no induration, eczema, or appreciable edema. There was no pitting edema. Homan's test was negative. Large varicose veins were seen beginning at the thigh to the tibial region. There were some moderate varicosities of the calf region. Pulses were 2+ and equal in both lower extremities. The Veteran walked with a normal gait. There was normal sensation and motor strength in the lower extremities. The diagnosis was varicose veins of the left lower extremity. Report of VA examination dated January 2007 reflects complaints of swelling, fatigue and edema relieved by resting and elevation of the left leg. The Veteran denied abnormal sensation of the left leg. He treated with elastic stockings and support hose, which did not improve edema and worsened pain. He denied history of rash, ulcers, or discoloration of the skin of the lower left extremity. He denied prior vein surgery. Objectively, there were palpable and visible varicose veins in the left lower extremity from the middle of the thigh over the left patella and the left lower leg. There was trace edema of the left foot and left lower leg, but no evidence of dermatitis, eczema, abnormal pigmentation of skin, or ulcer of the left lower extremity. Report of VA examination (Disability Benefits Questionnaire) dated in January 2012 reflects that the Veteran carries a diagnosis for varicose veins with vein ligation in 2011. The Veteran complained of pain along the length of the great saphenous vein. Symptoms included aching and fatigue in the left leg after prolonged standing or walking. Symptoms were relieved by elevation of extremity and compression hosiery. There were no findings for stasis pigmentation or eczema, ulceration, edema, or constant pain at rest. It was noted that the Veteran used a cane occasionally and that left leg function was not so diminished that amputation with prosthesis would equally serve the Veteran. There was a surgical scar that was not painful and/or unstable, and the total area of the scar was not 6 square inches (39 centimeters) or greater. The examiner stated that the Veteran's left lower extremity discomfort at the site of his varicosities impacted his ability to work, noting that the Veteran took Vicodin for left knee and vein pain. VA treatment records dated since 2003 reflect that the Veteran was followed for left leg varicose veins, treated with thigh high support hose. In March 2003, the Veteran presented with complaints of left calf pain for one week and swelling. Objectively, there was no redness and the foot was pink, slightly cool to touch. Pain was 10/10. Evaluation showed no evidence for deep vein thrombosis in the left leg. In September 2008, review of the systems showed no edema of the extremities and 2+ pedal pulses. In April 2009, review of the systems showed mild edema and varicose veins of the lower extremities without skin disorder of the left lower extremity. In March 2010, the Veteran was noted to have normal gait, no clubbing or cyanosis, no joint enlargement, normal muscle tone and strength, 2+/4 pulses, and no edema. In July 2010, the Veteran presented with complaints of increased painful varicose veins of the left leg. He rated pain as 5/10. A small area of redness was found on the upper left leg and there was tenderness to touch. Homan's test was positive. In October 2010, the Veteran underwent vein ablation for saphenous vein insufficiency of the left leg. The lay and medical evidence reflect that the Veteran's varicose veins are not manifested by stasis pigmentation or eczema. A higher evaluation for varicose veins requires either evidence of stasis pigmentation or eczema in addition to persistent edema. Here, the evidence more nearly reflects that the Veteran's varicose veins involve persistent edema incompletely relieved by elevation of the extremity. 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7120. Additionally, the Board finds that a higher rating is not warranted under any other potentially applicable schedular criteria in the absence of findings for stasis pigmentation or eczema. See 38 C.F.R. § 4.104, Diagnostic Code 7121 (Post phlebotic syndrome of any etiology). Likewise, a separate disability rating for scar is not warranted because, although a scar is shown, the scar is not painful or unstable, deep and measuring 6 square inches (or greater), or superficial and measuring 144 square inches (or greater); and the scar does not result in any functional limitations. 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Codes 7801-7804. The Veteran is competent to symptoms associated with his left leg varicose vein disability such as pain and swelling. However, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability, and such evidence demonstrates that the currently assigned 20 percent rating is appropriate for the Veteran's left leg varicose vein disability. Accordingly, the claim must be denied and there no basis for a staged rating. See Hart, supra. Furthermore, there is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. Left Knee Disability Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees, and a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the knee warrants a noncompensable rating if extension is limited to five degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees, and a 50 percent rating if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Severe impairment of the knee, recurrent subluxation or lateral instability, warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Under pertinent diagnostic criteria, a 60 percent disability evaluation is warranted for an amputation of the middle or lower thirds of the thigh; amputation of the thigh with a defective stump, thigh amputation recommended; or amputation of the thigh that is not improvable by prosthesis controlled by natural knee action. See 38 C.F.R. § 4.71a, Diagnostic Codes 5162, 5163, and 5164. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for left knee impairment with severe subluxation and in excess of 10 percent for degenerative changes with limitation of motion. Report of VA examination dated in May 2005 reflects complaints of worsening left knee pain and swelling. The Veteran reported that he quit his job as a cook because his knee required him to sit down a lot. He takes Tylenol with Codeine with very little benefit. Physical examination showed moderate swelling due to an effusion, no increased heat, no instability, and no crepitus. The range of motion was from 0 to 95 degrees. With repetition, there was no increase in loss of range of motion due to pain, fatigue, or weakness. X-ray revealed mild degenerative changes of the left knee. The Veteran reported that he has in the past used a knee brace; that he cannot perform yard work; that he has difficulty using stairs; and that he cannot walk long distances or run. He described no additional limitation during flare ups, and reported that his symptoms were the same each day. He has undertaken some weight loss, and tried to use a cane. VA treatment records show that the Veteran was seen for left knee complaints, treated initially with etodolac and then changed to Tylenol. In May 2005, it was noted that the Veteran could stand, sit, and ambulate with ease although the Veteran reported pain as 10/10. There was mild swelling. There was no evidence of dislocation. The diagnosis was arthritis. In June 2005, there was tenderness of the medial joint line, puffiness, and crepitus. In July 2006, the Veteran requested a new knee brace. In November 2006, the Veteran complained of left knee pain, treated with Vicodin. He denied physical therapy. Objectively, there was no effusion or instability. The range of motion was from 0 to 120 degrees. McMurray's, Lachman's, and patellar compression tests were negative. X-ray showed arthritis. The Veteran was advised to lose weight and instructed on quadriceps strengthening. VA treatment records reflect degenerative joint disease of the left knee. In 2007, it was noted that the Veteran received hyaluronate injections to the left knee. The Veteran argues that higher evaluations are warranted because he has been told that he will need a left knee replacement in the future. See Notice of Disagreement dated June 2005. He later reported that higher evaluations are warranted because his disability prevents him from working; that he must take frequent breaks (sit down); and that he had to move to an apartment because he could no longer perform yard work. Report of VA examination dated in January 2007 reflects complaints of constant left knee pain, worse with walking and climbing stairs, along with swelling after 1/2 hour of walking. He reported taking Vicodin with partial and temporary pain relief. The Veteran reported morning left knee stiffness that improves with physical activity. He denied locking, weakness, instability, and dislocation or subluxation of the left knee. He was advised to use a cane while walking, but stated that he was unable to do so at his job (stocking shelves and unloading trucks). He denied use of a knee brace because it causes swelling and increased pain. Physical examination showed a slight limp and avoidance of weight-bearing on the left. There were no findings for unusual shoe wear, corns, or calluses. There was tenderness to palpation of the left knee, but no erythema or increased temperature, and no laxity of ligaments. McMurray's and Lachman's tests were negative. The left knee was enlarged compared to the right knee. There was no wasting or weakness of the periarticular muscles of the left knee. He could not squat or hop on his left leg. The range of motion was from 0 to 50 degrees, with painful motion from 10 to 50 degrees. With repetition, there was severe pain, fatigue, weakness, and lack of endurance. Pain reduced motion by 30 degrees on repetitive motion testing. Instability was worse with repetitive movement of the left knee. The diagnosis was degenerative arthritis of the left knee. VA treatment records dated in August 2010 reflect complaints of left knee giving out. An x-ray reflects findings for mild degenerative osteoarthritic changes of the left knee, but no loose bodies or signs of joint effusion. Report of VA examination (Disability Benefits Questionnaire) dated in January 2012 reflects left knee diagnoses for fracture of patella, degenerative arthritis, and lateral subluxation with chondromalacia. By history, the Veteran sustained a left patellar fracture when he fell on his knee while pushing a car out of snow. The knee was casted for 6 weeks. The Veteran reported intermittent pain and swelling since this event that has worsened in the years since, and decreased range of motion. He further reported flare-ups with increased activities which involve walking and standing that result in the left knee giving out. Objectively, there was tenderness to palpation. Muscle strength was 5/5 on left knee flexion and extension. There was no ligamentous instability. There was severe recurrent patellar subluxation/dislocation. The range of motion was from 0 to 70 degrees. Pain began at zero degrees. With repetition, the range of motion decreased to 50 degrees of flexion. Repetitive motion testing resulted in less movement than normal; weakened movement; excess fatigability; pain on movement; swelling; deformity; disturbances of locomotion; and interference with sitting, standing, and weight-bearing. The Veteran's gait was antalgic, he favored his left leg, and he occasionally used a cane. There was obvious lateral subluxation of the left patella with marked subpatellar tenderness. Functional impairment was not so diminished such that the Veteran would be equally well-served by an amputation with prosthesis. Imaging studies showed degenerative arthritis. The examiner noted that the Veteran worked as a cook and later in a department store, but retired in 2007 due to knee pain. The Veteran indicated that his knee gives out at least several times a week; that he has pain with walking and standing for any length of time and climbing stairs; and that he has difficulty rising from a seated position. The evidence shows that the Veteran has severe left knee impairment with subluxation and arthritis with limitation of motion. Because left knee ankylosis is not shown, a higher disability rating under Diagnostic Code 5256 is not warranted. Because the Veteran is rated at the maximum schedular level for severe knee impairment based on recurrent subluxation or lateral instability, a higher rating under Diagnostic Code 5257 is not available. Because the Veteran does not experience frequent episodes of "locking," pain and effusion into the joint, a rating under Diagnostic Code 5258 is not warranted. Because the Veteran has not had removal of cartilage that is symptomatic, a rating under Diagnostic Code 5259 is not warranted. Because the Veteran has no limitation of extension, a rating under Diagnostic Code 5261 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5261. The Board has carefully considered whether a higher disability evaluation may be assigned on the basis of limitation of flexion. The Veteran is currently rated at the 10 percent disability level based on arthritis with limitation of motion under Diagnostic Code 5003-5260. To warrant a higher disability evaluation, the Veteran must have the functional equivalent of flexion limited to 30 degrees to warrant a 20 percent rating, or to 15 degrees to warrant a 30 percent rating. Prior to January 19, 2007, the record does not show flexion limited to 30 degrees or less. On the contrary, in November 2006, the Veteran had range of flexion to 120 degrees. Accordingly, a higher rating based on limitation of flexion during this period is not warranted. The range of motion studies conducted during the January 19, 2007 examination show range of motion from 0 to 50 degrees exceeding the limitation to 30 degrees contemplated by a higher evaluation. However, the examination report indicates painful flexion from 10 to 50 degrees. When considering the provisions of 38 C.F.R. § 4.40 and § 4.45 as well as the ruling in DeLuca, the Board notes that pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, No. 09-2169 (Vet. App. Aug. 23, 2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Examination in January 2007, revealed repetitive motion which resulted in a 30 degree reduction in motion (i.e., flexion to 20 degrees) following repetition. This finding is consistent with a 20 percent disability evaluation for limitation of flexion, effective from January 19, 2007. Accordingly, a 20 percent disability rating effective from January 19, 2007, is warranted. From January 26, 2012, however, the evidence does not show that the Veteran's limitation of flexion warrants a rating in excess of the 10 percent currently assigned. In this regard, the January 2012 VA examination revealed range of motion from 0 to 70 degrees. While pain was noted at 0 degrees, repetition decreased the Veteran's range of motion to 50 degrees of flexion. This level of functional impairment is consistent with a 10 percent evaluation under Diagnostic Code 5260. A rating in excess of 10 percent is warranted by a level of function impairment consistent with flexion limited to 30 degrees or less. The findings on examination in January 26, 2012, even with considering the impact of pain and repetitive motion do not result in such level of functional impairment as to warrant a rating in excess of 10 percent. The Veteran is competent to report his symptoms such as pain, and the impact that his knee disabilities have on his daily activity. However, the Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Based on the forgoing, the Board concludes that the criteria for a staged rating are met and that a 20 percent disability evaluation from January 19, 2007, to January 26, 2012, is warranted for limitation of flexion. See Fenderson and Hart, supra. Extraschedular Consideration The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disabilities herein adjudicated are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 20 percent for varicose veins of the left leg is denied. An evaluation in excess of 30 percent for left knee impairment (other than limitation of motion) is denied. An evaluation in excess of 10 percent for left knee degenerative changes with limitation of motion, prior to January 19, 2007, is denied. An evaluation of 20 percent for left knee degenerative changes with limitation of motion, from January 19, 2007, to January 26, 2012, is granted. An evaluation in excess of 10 percent for left knee degenerative changes with limitation of motion, from January 26, 2012, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs