Citation Nr: 1302007 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 06-15 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee (left knee disability) prior to October 15, 2007, and a rating in excess of 30 percent from December 1, 2008. 2. Entitlement to an initial rating in excess of 10 percent for a medial meniscus tear of the right knee, postoperative (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted 10 percent ratings for left and right knee disabilities effective August 1, 2003. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2007. A copy of the hearing transcript has been associated with the claims file. The matter was then remanded by the Board in February 2008. The RO subsequently granted a 100 percent temporary rating for the Veteran's left knee disability from October 15, 2007 to November 30, 2008. A 30 percent rating was awarded from December 1, 2008. The Board then denied the Veteran's claims in an October 2010 decision. That decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMR) filed by the parties, the Court remanded the case back to the Board in September 2011. The Board remanded the claims for further development in March 2012. That development has been completed, and the case returns to the Board for further review. The Veteran's Virtual VA file has been reviewed as part of his appeal. FINDINGS OF FACT 1. Prior to October 15, 2007, the Veteran's degenerative joint disease of the left knee was manifested by 0 degrees of extension and 125 degrees of flexion; instability, locking, and effusion were not demonstrated. 2. From December 1, 2008, the Veteran's degenerative joint disease of the left knee was manifested by a total knee replacement with intermediate degrees of residual weakness, pain and limited motion. 3. The Veteran's medial meniscus tear of the right knee, postoperative, was manifested by at least 0 degrees of extension and 90 degrees of flexion; instability, locking, and effusion were not demonstrated. CONCLUSIONS OF LAW 1. Prior to October 15, 2007, the criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003 (2012). 2. From December 1, 2008, the criteria for a rating in excess of 30 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2012). 3. The criteria for a rating in excess of 10 percent for a medial meniscus tear of the right knee, postoperative, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluations assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, because he appealed the initial disability ratings assigned, the Veteran is presumed to be seeking the maximum benefits available under the law for each appealed issue. Dingess; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a May 2006 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran's service treatment records, private treatment records, VA authorized examination reports, and hearing transcript have been associated with the claims file. Notably, the Veteran was afforded several VA examinations to assist his claims. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's left and right knee disabilities. In particular, the September 2011 JMR noted above stated that the January 2010 VA examination in this case was inadequate because the examiner noted painful motion in the Veteran's left knee, but failed to specify at what point pain began within the range of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran underwent an additional examination in May 2012 which specifically recorded the point at which painful motion began in both the left and right knees, and also recorded range of motion findings following repetitive testing. Accordingly, the deficiency previously noted in the JMR has been addressed, and VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). 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 not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The Veteran's left knee disability is rating under Diagnostic Code 5003-5055. He was assigned a 10 percent rating prior to October 15, 2007, and a 30 percent rating from December 1, 2008. The Veteran's right knee disability is rated under Diagnostic Code 5259. He has been assigned a 10 percent rating throughout the period on appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires 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. There are several Diagnostic Codes applicable to the Veteran's claims. Under Diagnostic Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 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 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5055 provides that knee replacements warrant a 100 percent rating for one year following implantation of the prosthesis. Following this one-year period, the minimum rating is 30 percent. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residuals weakness, pain, or limitation of motion are rated by analogy to diagnostic codes 5256, 5261, or 5262. Id. Diagnostic Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id. Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. Id. The VA General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004). Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for a slight knee disability. A 20 percent rating is warranted for a moderate knee disability. A 30 percent rating is warranted for a severe knee disability. 38 C.F.R. § 4.71a. The Board observes that the words "slight", "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The VA General Counsel has also held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9- 98, (August, 1998). VA's General Counsel further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Id. In this regard, in applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012). Diagnostic Code 5258 provides that dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint is rated at 20 percent. 38 C.F.R. § 4.71a. The Board notes there are other pertinent diagnostic criteria for rating knee disabilities. However, these criteria do not allow for ratings in excess of 10 percent, or the objective evidence of record does not contain any of the relevant findings: ankylosis of the knee (rated under Diagnostic Code 5256); removal of semilunar cartilage (rated under Diagnostic Code 5259); nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262); or genu recurvatum (rated under Diagnostic Code 5263). 38 C.F.R. § 4.71a. As such, ratings under these Diagnostic Codes are not applicable. The Veteran underwent a VA examination in May 2006. With respect to his left knee, he stated that the knee tended to bow outward if he was not wearing a brace. Pain was constant, and described as moderate to severe. The Veteran reported having difficulty with stairs. With respect to his right knee, he experienced aching and throbbing which was mild but constant. He had decreased flexion, as well as weakness with squatting. Generally, he was able to stand for 15-30 minutes and could walk for 1 to 3 miles. He denied any deformity, giving way, instability, or stiffness. He denied any flare-ups. On examination, ankylosis, inflammatory arthritis and instability were not present. There was bilateral tenderness and clicking. Strength was normal. Extension was 0 degrees and flexion was 125 degrees bilaterally. There was no additional limitation following repetitive testing. No swelling or effusion was present. Anterior and posterior drawer tests were normal. X-rays revealed bilateral degeneration of the medical meniscus and patellofemoral articulation, much more pronounced on the left. The examiner indicated that the Veteran's left knee condition had moderate effects on sports and exercise activities. There were mild effects on recreation and chores. The right knee resulted in mild effects on chores, exercise, sports, and recreation. Private treatment records show the Veteran complained of worsening left knee pain in August 2007. An additional VA examination was conducted in January 2010. The Veteran complained of left knee pain on walking and going up stairs. He also noted symptoms of giving way, stiffness, weakness, and flare-ups. The flare-ups did not cause additional functional impairment. He did not complain of instability, locking, dislocation or subluxation. He was able to stand for 15-30 minutes and to walk 1/4 mile. Physical examination of the left knee did not show any tenderness, grinding, instability, or weakness. Range of motion of the left knee was from 0 to 110 degrees with objective evidence of pain. Range of motion of the right knee was from 0 to 125 degrees without objective evidence of pain. There was objective evidence of pain on repetitive motion but no additional functional loss. The Veteran had an antalgic gait secondary to his total left knee replacement. He did not have ankylosis. X-rays showed degenerative changes of the right knee and left knee total prosthesis in anatomic alignment. The most recent VA examination was conducted in May 2012. The Veteran stated his left knee was extremely painful in cold weather. He could not kneel, and could only sit or stand for a "little bit." He could not bend the knee while using stairs. The Veteran also reported increased pain in the right knee. He compensated for his left knee with increased use of the right knee. There were 3 to 4 instances since February 2012 where the Veteran could hardly walk on his right knee. He was told to apply ice and use Lortabs for pain. He also used a cane to ambulate. After a few days, his condition improved. He also had milder flare-ups consisting of a throbbing sensation in the front of the knee. On examination, range of motion of the right knee was 0 degrees extension and 125 degrees of flexion, with the onset of pain at 90 degrees of flexion. Range of motion of the left knee was 20 degrees extension to 100 degrees of flexion, with the onset of pain at 90 degrees of flexion. These findings were unchanged following repetitive testing. There was tenderness to palpation bilaterally. Motor strength and stability were both within normal limits bilaterally. Although the Veteran had a history of a meniscal injury, there were no symptoms of locking or effusion in either knee. The examiner stated that the residuals of the Veteran's left knee replacement consisted of intermediate degrees of residual weakness, pain or limited motion. X-rays revealed degenerative and osteoarthritic changes in the right knee. The Veteran's left knee prosthesis was satisfactorily positioned with no osseous abnormality. With respect to the left knee, a rating in excess of 10 percent is not warranted prior to October 15, 2007. The May 2006 VA examination documented 0 degrees of extension and 125 degrees of flexion. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261. A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's left knee disability is manifested by some limited motion, albeit not to a compensable level. Therefore, a higher rating is not warranted under Diagnostic Code 5003. In addition, while the Veteran has a history of a left knee meniscal injury, the record does not reflect any complaints or findings of frequent episodes of locking and effusion in the left knee. Therefore, a higher rating under Diagnostic Code 5258 is not appropriate. Instability in the left knee has also not been demonstrated. Notably, the Veteran reported wearing a brace on his left knee to prevent it from "bowing" outward. However, anterior and posterior drawer tests were negative during the May 2006 examination, and there were no other findings demonstrating any instability. Therefore, a rating under Diagnostic Code 5257 is not warranted. From December 1, 2008, a rating in excess of 30 percent is not warranted for the Veteran's left knee disability. Under Diagnostic Code 5055, a minimum 30 percent rating is warranted following total knee replacement. The May 2012 examiner specifically noted that the residuals of this replacement consisted of intermediate degrees of weakness, pain and limited motion. This is also consistent with the assigned 30 percent rating. The criteria for a higher 60 percent rating under Diagnostic Code 5055, chronic residual severe pain or weakness, are not objectively demonstrated. Range of motion during this period was, at worst, 20 degrees of extension to 90 degrees of flexion when accounting for painful motion and repetitive testing. A compensable level of limited motion under Diagnostic Code 5260 requires flexion limited to 45 degrees. Therefore, a higher or separate rating is not warranted. Extension limited to 20 degrees is consistent with a 30 percent rating. As discussed above, the regulations allow for the assignment of certain separate ratings when evaluating knee disabilities. However, the Veteran's currently assigned 30 percent rating under Diagnostic Code 5003-5055 already contemplates limited motion. In this case, a separate award for limitation of extension of the left knee would constitute pyramiding. 38 C.F.R. § 4.14. With respect to the right knee, a rating in excess of 10 percent is not warranted. At worst, range of motion during the period on appeal was 0 degrees of extension and 90 degrees of flexion, even when accounting for painful motion and repetitive testing. A compensable level of limited motion requires either flexion limited to 45 degrees or extension limited to 10 degrees. Therefore, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261. A higher 20 percent rating under Diagnostic Code 5003 is only appropriate in the absence of any limitation of motion. However, as noted above, the Veteran's right knee disability is manifested by some limited motion, albeit not to a compensable level. In addition, while the Veteran has a history of a right knee meniscal injury, the record does not reflect any complaints or findings of frequent episodes of locking and effusion in the right knee. Therefore, a higher rating under Diagnostic Code 5258 is not appropriate. Instability in the right knee has also not been demonstrated. Therefore, a rating under Diagnostic Code 5257 is not warranted. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as knee pain and limited mobility. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left and right knee disabilities with the established criteria found in the rating schedule for those conditions shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Specifically, the Veteran's symptoms of limited motion, pain, weakness and stiffness are contemplated in the regulations and the applicable Diagnostic Codes. The Veteran's disabilities do not result in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER A rating in excess of 10 percent for degenerative joint disease of the left knee prior to October 15, 2007 is denied. A rating in excess of 30 percent for degenerative joint disease of the left knee from December 1, 2008 is denied. A rating in excess of 10 percent for a medial meniscus tear of the right knee, postoperative, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs