Citation Nr: 1301289 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 05-39 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable disability rating for residuals of a fracture of the right ankle for the period from November 1, 2004 to May 7, 2009. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) with chondromalacia of the right knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran now resides in the jurisdiction of the Chicago, Illinois VARO. The May 2005 RO decision granted service connection for the right knee disability on appeal with a 10 percent rating effective November 1, 2004. That rating has remained in effect and the Veteran appeals it. The May 2005 RO decision also granted service connection for the residuals of a right ankle fracture with a noncompensable rating effective November 1, 2004. In September 2008, the Board remanded these matters for additional development. In an October 2010 rating decision, the RO increased the rating for the right ankle to 10 percent effective May 7, 2009. Then, in an April 2011 decision, the RO increased the rating for the ankle to 20 percent effective May 7, 2009. The Veteran appeals the noncompensable evaluation assigned before May 7, 2009. In March 2011, the Board decided appeals on several issues. The decision included the denial of higher initial ratings for the right knee and right ankle disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2012, the Court granted a Joint Motion for Remand (JMR), which vacated that portion of the Board decision dealing with the two issues listed on the title page and remanded them for actions consistent with the JMR. In April 2012, the Board remanded these matters consistent with the actions set forth in the JMR. FINDINGS OF FACT 1. For the period from November 1, 2004 to May 7, 2009, the Veteran's right ankle disability was manifested by no more than mild symptoms. 2. The Veteran's service-connected right knee disability has been manifested by flexion limited, at most, to 104 degrees, normal extension, with no objective findings of instability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for residuals of a fracture of the right ankle for the period from November 1, 2004 to May 7, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for DJD with chondromalacia of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010, 5261, 5262, 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in August 2004, March 2006, October 2008, and August 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent November 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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. The Veteran underwent an April 2005 VA joints examination and the report reflects that the VA examiner reviewed the claims file. The Veteran reported that she fractured her right ankle in January 2004, was placed in a boot shoe for two months, and currently had no symptoms for the right ankle. She also has trouble with her right knee that was incurred with activity in service. Currently, she has no symptoms with the right knee. Physical examination revealed right ankle dorsiflexion to 30 degrees, plantar flexion 35 degrees, inversion 40 degrees, and eversion 30 degrees. She can plantar flex and dorsiflex the toes 20 degrees. There is 1+ edema of the right ankle. The sensation and pulses are normal. The right knee range of motion is 0 degrees to 130 degrees. There is slight fluid around the right knee no tenderness. Slight crepitus. No laxity. The impression was fracture of the right ankle in January 2004, resolved with treatment, no current symptoms, and no disability, and DJD of the right knee with associated chondromalacia, no current symptoms, normal examination, and minimal disability. An October 2005 VA feet examination report reflects that the Veteran does not use any crutches, brace, cane, or corrective shoes. She does not have any problems ambulating. Physical examination revealed that active and passive range of motion of her knees, ankles, and toes was normal. She was able to stand on her toes and her heel and squat down without any pain or problem. Alignment of her Achilles tendon is normal. There is no tenderness with palpation of the Achilles tendon. Her right ankle looks larger than her left ankle; however, there is no pitting edema on either of the ankles. Her pedal pulse is 2/4 bilaterally. Range of motion in all joints is normal. There is no limitations in movement. There is no limitation in function. There is no weakness or tenderness of her ankle and there is no edema present. Her gait is normal. There are no functional limitations in standing or walking. Lower extremity swelling was most likely secondary to hypertension. In her December 2005 substantive appeal, the Veteran asserted that her right ankle disability should be rated as 10 percent disabling and her right knee disability should be rated as 20 percent disabling. A May 2009 VA joints examination report reflects that the Veteran described her service-connected right knee and right ankle disabilities as stable since their onset. With regard to right knee joint symptoms, she denied deformity, giving way, instability, stiffness, weakness, incoordination, episodes of dislocation or subluxation, effusions, locking episodes, and symptoms of inflammation. She reported symptoms of pain, decreased speed of joint motion, repeated effusions, the condition affecting the motion of the joint, flare-ups of moderate severity occurring every two to three weeks and lasting one to two days. Precipitating factors include increased or unusual physical activities, alleviating factors includes rest and warmth. The Veteran reported that she never knows when her knee is going to hurt. With regard to right ankle symptoms, she denied deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, effusions, locking episodes, and symptoms of inflammation. She reported symptoms of pain, stiffness, weakness, decreased speed of joint motion, constant effusions, the condition affecting the motion of the joint, flare-ups of moderate severity occurring weekly and lasting one to two days. Precipitating factors include increased or unusual physical activities, alleviating factors includes rest, elevation, and warmth. The Veteran reported that she her ankle hurt at least three to four times a month. Three were no constitutional symptoms or incapacitating episodes of arthritis. She is able to stand for fifteen to thirty minutes and is able to walk more than a quarter mile, but less than one mile. She does not use any assistive devices. Physical examination revealed that a weight-bearing joint was affected. Her gait was normal. There was no evidence of abnormal weight bearing and no inflammatory arthritis. Right knee findings included tenderness, guarding of movement, and clicks or snaps. There was no crepitation, mass behind the knee, grinding, instability or patellar or meniscus abnormality. Right ankle findings included tenderness and guarding of movement. There was no ankle instability or tendon abnormality. No obvious valgus or varus present. Range of motion of the right knee with objective evidence of pain. Right knee flexion 0 to 114 degrees, extension was normal (0) degrees. There was objective evidence of pain following repetitive motion with additional limitation of motion after three repetitions due to pain, noted as right flexion 0 to 104 degrees and right extension 0 to 0 degrees. Range of motion of the right ankle with objective evidence of pain. Right dorsiflexion was 0 to 11 degrees and right plantar flexion was 0 to 35 degrees. There was objective evidence of pain following repetitive motion with additional limitation of motion after three repetitions due to pain, noted as right dorsiflexion 0 to 10 degrees and right plantar flexion 0 to 32 degrees. There was no joint ankylosis. X-rays revealed mild degenerative changes typical for age of the right knee and right ankle x-ray was normal for age. It was noted that the Veteran was currently employed, full-time, and had lost 0 days of work during the last 12 month period. The diagnoses were mild degenerative changes, right knee, and mild degenerative changes, right ankle, with significant effects on usual occupation, noted as decreased mobility, decreased strength of the lower extremity and pain. Effects on the usual daily activities ranged from none to mild, with moderate noted only in relation to sports. A June 2012 VA ankle examination report reflects that the Veteran stated she gets swelling around her ankles. She indicated that flare-ups did not impact the function of her ankle. Range of motion of the right ankle noted was plantar flexion endpoint 45 or greater (normal endpoint is 45 degrees) and dorsiflexion to 20 degrees or greater (normal endpoint is 20 degrees). There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, post-test range of motion plantar flexion ends at 45 degrees or greater and dorsiflexion ends at 20 degrees or greater. The Veteran does not have additional limitation in range of motion of the ankle following repetitive-use testing. The Veteran does not have any functional loss and/or functional impairment of the ankle. She was not found to have pain on palpation. The examiner did not find that the Veteran had any of the DeLuca factors. Muscle strength testing was 5/5, normal. There was no laxity and no ankylosis of the right ankle. The examiner reported that due to the Veteran's right ankle condition, he found that there was no loss of functional impairment of an extremity. Imaging studies were performed and there were no abnormal findings. The Veteran's ankle condition does not impact her ability to work. The VA examiner remarked that the Veteran had bilateral pitting edema +1 at the lateral malleous of each ankle. The Veteran admitted to not taking her HCTZ this morning for her hypertension. Not related to any previous ankle or foot fracture. A June 2012 VA knee examination report reflects that the Veteran reported intermittent pain, but denied any giving way, locking up or swelling. She has pain when climbing stairs. She reported flare-ups that impact the function of the knee and/or lower leg, in her own words described as pain when climbing stairs. Range of motion testing revealed flexion to 135 degrees (noting normal endpoint is 140 degrees) and no limitation of extension (0) with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, post-test flexion ends at 135 degrees and post-test extension was 0 degrees, no limitation of extension. The Veteran does not have additional limitation in range of motion of the right knee and lower leg following repetitive-use testing. The Veteran does not have any functional loss and/or functional impairment of the right knee and lower leg. The examiner did not find that the Veteran had any of the DeLuca factors pertaining to the right knee; however, in contrast, the Veteran had tenderness or pain to palpation of the left knee (not service-connected). Muscle strength testing was 5/5, normal strength. Stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner reported that due to the Veteran's right knee condition, he found that there was no loss of functional impairment of an extremity. Imaging studies performed revealed arthritis in the right knee. The Veteran's right knee condition does not impact her ability to work. After performing both examinations, the VA examiner opined that the right ankle examination was normal without any problems found on examination. The right knee has mild flexion decrease when compared to the left knee. The imaging in 2001 of the right knee does note chondromalacia with early DJD. A. Right ankle The Veteran is currently assigned a noncompensable disability rating for her service-connected right ankle disability under 38 C.F.R. § 4.71a , Diagnostic Code 5271 for limitation of motion for the period from November 1, 2004 to May 7, 2009. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion. Marked limitation of ankle motion warrants a 20 percent evaluation. The terms "moderate" and "marked" are not defined in the rating schedule and, rather than applying a mechanical formula, VA must evaluate all the evidence in order to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6 Normal range of motion for the ankle is 20 degrees for dorsiflexion and 45 degrees for plantar flexion. 38 C.F.R. § 4.71 , Plate II. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5262 (malunion of the tibia and fibula with slight knee or ankle disability), 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy), are not applicable as there was no evidence of ankylosis, malunion or astralgalectomy in the post-service medical records, and specifically are negative in VA examination reports. Accordingly, those diagnostic codes may not serve as the basis for an initial compensable rating for this period. In this case, the evidence of record does not support the assignment of a compensable rating for the Veteran's right ankle disability for the period from November 1, 2004 to May 7, 2009. This is so because there is no evidence to support a finding that the Veteran's right ankle disability results in moderate limitation of the ankle or painful or limited motion of the joint. There are no post-service treatment records for the Veteran's right ankle disability. Thus, the only medical evidence for this period is an April 2005 and October 2005 VA examination report. During the April 2005 VA examination, the Veteran denied any right ankle symptoms. Objective findings were that she had dorsiflexion to 30 degrees and plantar flexion to 35 degrees. The examiner opined that she had no current disability. Thereafter, in the October 2005 VA examination report, active and passive range of motion of her ankles was noted as normal. She was able to stand on her toes and her heel and squat down without any pain or problem. Alignment of her Achilles tendon is normal. There is no tenderness with palpation of the Achilles tendon. The examiner stated that range of motion in all joints is normal. There is no limitations in movement. There is no limitation in function. There is no weakness or tenderness of her ankle and there is no edema present. Her gait is normal. There are no functional limitations in standing or walking. Lower extremity swelling was most likely secondary to hypertension. The Board notes that an additional VA examination performed in June 2012, albeit outside the appeal period at issue, but afforded the Veteran in light of the JMR provides further evidence against an initial compensable rating. In this regard, range of motion of the right ankle noted was plantar flexion endpoint 45 or greater (normal endpoint is 45 degrees) and dorsiflexion to 20 degrees or greater (normal endpoint is 20 degrees). There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions, post-test range of motion plantar flexion ends at 45 degrees or greater and dorsiflexion ends at 20 degrees or greater. She did not have additional limitation in range of motion of the ankle following repetitive-use testing and she did not have any functional loss and/or functional impairment of the ankle. Further, she was not found to have pain on palpation. The examiner did not find that the Veteran had any of the DeLuca factors. Muscle strength testing was 5/5, normal. There was no laxity and no ankylosis of the right ankle. The examiner reported that due to the Veteran's right ankle condition, he found that there was no loss of functional impairment of an extremity. Imaging studies were performed and there were no abnormal findings. Further, the Veteran indicated that flare-ups did not impact the function of her ankle. Thus, the only finding during this period of the appeal is that at the time of the April 2005 VA examination, the Veteran had plantar flexion to 35 degrees, a finding consistent with mild limitation of motion. Thus, an initial compensable rating for the Veteran's right ankle disability for the period from November 1, 2004 to May 7, 2009 is not warranted. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). While the Veteran is competent describe symptoms such as right ankle pain and weakness, the Veteran's subjective complaints are not wholly consistent with the objective findings on VA examination reports, as was discussed above. In the Board's judgment, the Veteran's subjective complaints are outweighed by the VA medical findings, which do not support an initial compensable rating for the right ankle disability for the period from November 1, 2004 to May 7, 2009. Under these circumstances, the Board must conclude that the criteria for an initial compensable rating for the Veteran's service-connected right ankle disability has not been met at any point during the period from November 1, 2004 to May 7, 2009. As such, there is no basis for further staged ratings pursuant to Fenderson, and the claim for an initial compensable rating for this period must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). B. Right knee In this case, the Veteran service-connected DJD with chondromalacia of the right knee is rated as 10 percent disabling under Diagnostic Codes 5010-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a , Diagnostic Code 5003. Under DC 5260, limitation of flexion to 45 degrees warrants a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Under DC 5261, limitation of extension to 15 degrees warrants a 20 percent rating. A 30 percent rating requires limitation of extension to 20 degrees. A 40 percent rating requires limitation of extension to 30 degrees. A 50 percent rating requires limitation of extension to 45 degrees. Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. See 38 C.F.R. Part 4, Plate II. Under Diagnostic Code 5257, pursuant to which recurrent subluxation or lateral instability is rated, a 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Further, 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; 69 Fed. Reg. 59990 (2004). Considering the objective medical evidence of record in light of the above, the Board finds that an initial rating in excess of 10 percent for the Veteran's service-connected right knee disability is not warranted at any point since the effective date of the grant of service connection. First addressing limited motion, the Board notes that, collectively, the evidence noted above reveals that the Veteran has had normal extension, which would not warrant a compensable rating under Diagnostic Code 5261. Moreover, while there has been some limitation of flexion of the right knee with pain, on one occasion after three repetitions at the time of the May 2009 VA examination- such has not been shown to be to an extent that would warrant a compensable rating under Diagnostic Code 5260. Thus (per 38 C.F.R. § 4.71a , Diagnostic Code 5003), no more than a 10 percent rating is warranted for the right knee. This is so even considering functional loss due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. On objective demonstration, there has been no evidence of weakness, decreased strength with range of motion, lack of endurance, fatigue, or incoordination. While the Veteran has complained of pain, there was no objective evidence of pain on palpation of the right knee during the June 2012 VA examination. Further, range of motion of the knee was full following repetitive use at the most recent June 2012 VA examination. In short, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that limitation of flexion would be compensable under Diagnostic Code 5260 or that limitation of extension would be compensable under Diagnostic Code 5261. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Also for the reasons noted above, there is no basis for assignment of separate ratings for limited flexion and extension. The Board has also considered the applicability of other potentially applicable diagnostic codes for rating the Veteran's left and right knee disabilities, but finds that no higher rating is assignable. The Veteran has never demonstrated or been diagnosed with ankylosis of either knee, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum (hyperextended knee). Therefore, 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262, and 5263 are not for application. While the RO has hyphenated the Veteran disability to include DC 5257, for recurrent subluxation or lateral instability of the knee; all of the VA examination reports are negative for instability and in fact, the June 2012 VA examination report specifically reported stable joints. Further, the Veteran has denied giving out, thus this diagnostic code does not provide for a higher rating. For this reason, there also is no basis for assignment of separate ratings for limited motion and instability. While the Veteran is competent describe symptoms such as right knee pain and weakness, the Veteran's subjective complaints are not wholly consistent with the objective findings on VA examination reports, as was discussed above. The Board recognizes that the Veteran stated that she cannot walk in excess of a mile and that her knee pain is increases with physical activity; however, this alone does not serve to allow for the assignment of additional disability in excess of the 10 percent which had already been assigned. In the Board's judgment, the Veteran's subjective complaints are outweighed by the VA medical findings, which do not support a higher initial rating for her service-connected right knee disability. Under these circumstances, the Board must conclude that the criteria for an initial rating in excess of 10 percent for the Veteran's service-connected right knee disability has not been met at any point since the effective date of the grant of service connection. As such, there is no basis for staged rating pursuant to Fenderson, and the claim for a higher initial rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). C. Each disability The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point during this appeal period have the Veteran's right ankle or right knee disability on appeal been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). In this regard, there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for these issues. See Shipwash v. Brown, 8 Vet. App. 218 (1995). Here, the record does not reflect that the Veteran was hospitalized for his service-connected right ankle or right knee disability. There is no objective evidence revealing that the right ankle or right knee disability alone caused marked interference with employment, e.g., employers' statements or sick leave records, beyond that already contemplated by the schedular rating criteria. In this case, the Board finds that schedular criteria are adequate to rate the service-connected disabilities under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial compensable disability rating for residuals of a fracture of the right ankle for the period from November 1, 2004 to May 7, 2009, is denied. An initial disability rating in excess of 10 percent for degenerative joint disease (DJD) with chondromalacia of the right knee is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs