Citation Nr: 1303203 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-09 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee, patellar tendon rupture, from June 4, 2006 until June 6, 2006. 2. Entitlement to a rating in excess of 10 percent for left knee, patellar tendon rupture, status post repair, from August 1, 2006. 3. Entitlement to a separate evaluation for left knee limitation of extension. 4. Entitlement to a separate evaluation for left knee instability. 5. Entitlement to a separate evaluation for left knee surgical scar. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1976. The AOJ hascognized National Guard service from May to June 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for left knee, patellar tendon rupture. A 10 percent rating was assigned from June 4, 2006 until June 6, 2006. As of that date, a temporary total rating was assigned until August 1, 2006, when a 10 percent rating was again assigned. The Veteran has appealed the 10 percent ratings. FINDINGS OF FACT 1. For the period of June 4, 2006 to June 6, 2006, the Veteran demonstrated limited/painful flexion, but it was not the functional equivalent of flexion limited to 30 degrees; he also demonstrated slight instability of the left knee; left knee extension was not impaired. 2. For the period from August 1, 2006, the Veteran demonstrated limited/painful flexion, but it was not the functional equivalent of flexion limited to 30 degrees; he demonstrated limited/painful extension, but it was not the functional equivalent of extension limited to 15 degrees; he demonstrated slight instability of the left knee; and he exhibited a painful surgical scar. CONCLUSIONS OF LAW 1. For the period of June 4, 2006 to June 6, 2006, the rating criteria for a rating in excess of 10 percent for left knee, patellar tendon rupture, based on impairment of flexion, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). 2. For the period of June 4, 2006 to June 6, 2006, the rating criteria for a separate rating of 10 percent for left knee, patellar tendon rupture, based on slight instability, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). 3. For the period from August 1, 2006 onward, the rating criteria for a rating in excess of 10 percent for left knee, patellar tendon rupture, based on impairment of flexion, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5260 (2012). 4. For the period from August 1, 2006 onward, the rating criteria for a separate rating of 10 percent for left knee, patellar tendon rupture, based on impairment of extension, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5261 (2012). 5. For the period from August 1, 2006 onward, the rating criteria for a separate rating of 10 percent for left knee, patellar tendon rupture, based on slight instability, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). 6. For the period from August 1, 2006 onward, the rating criteria for a separate rating of 10 percent for surgical scar due to left knee, patellar tendon rupture are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in January 2007 and April 2010. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. With regards to the claim for a higher initial rating for the left knee disability, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date 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 the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than the 10 percent he received as the initial rating, as well as the subsequently assigned 10 percent. 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 Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. 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 "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The record reflects that the Veteran injured his left knee while serving on a period of active duty training (ADT) during 2006. An evaluation at that time revealed that the Veteran reported knee pain. He had an aching left knee with giving way due to trauma. The problem location was noted to be the left patellar ligament. The Veteran reported that ambulation worsened the condition while ice and rest provided relief. The pain was rated as a 3 on a scale of 1 to 10 with 10 being worse. At worse, it was a 6. Swelling and instability were noted. On examination, the Veteran's gait was antalgic and he used a crutch and wore a knee immobilizer. There was evidence of pain on movement and of bone deformity. There was a palpable defect over the patellar tendon and a complete knee extension lag defect. Muscle strength was 5/5. Range of motion studies revealed motion to 125 degrees on flexion and 0 degrees of extension. There was laxity on the left. Anterior drawer test, Lachman's test, and posterior drawer test were normal. Valgus stress test was also normal. Hamstring and quadriceps strength was normal. Deep tendon reflexes were also normal. Sensation was normal. X-rays revealed a patella high riding with distance inferior patella to tibial tubercle 3 times patellar length, left. The diagnosis was nontraumatic rupture of the patellar tendon, left. A surgical repair was scheduled, which took place on June 6, 2006. As noted, a 100 percent rating was assigned for the surgical and convalescence period, until August 1, 2006. Thereafter, the Veteran still required some limitation of activities, such as on biking and running. However, he was able to perform all exercises, other than running, at his own pace and distance. By March 2007, there were no limitations, to include on running. In April 2007, VA afforded the Veteran a QTC Services examination. At that time, the Veteran reported that he had undergone surgery for his left knee, but had weakness, stiffness, swelling, giving way, and a lack of endurance. The pain was located in the left knee and was constant, but non-radiating. It was aching in sharp in nature and rated 8-9 on the 10 point scale. Pain was elicited with physical activity. The pain also radiated by itself. However, the Veteran could function without medication, although he complained of incapacitation at time. His current treatment was physical therapy. His functional impairment consisted of constant pain as well as difficulty on walking and running. Physical examination revealed a 16 centimeter scar on the anterior aspect of the left knee. There was no tenderness, disfigurement, ulceration, adherence, instability, edema, keloid formation, or hypo or hyperpigmentation. Examination of the feet revealed no abnormal weight bearing. The Veteran's posture was normal. His gait was abnormal with a limp favoring the left. No assistive device was used. There was tenderness to palpation of the left knee without edema with mild effusion. The Veteran was able to flex to 45 degrees and extend to zero degrees. Movement was noted to be limited due to pain, but not sue to fatigue, weakness, lack of endurance, or incoordination. Medical and lateral collateral stability tests, anterior and posterior crusciate stability testings, and medical and lateral meniscus tests were within normal limits. X-rays revealed osteoarthritic changes. The diagnosis was ruptured left patellar tendon, status post repair, with severe limitation of the range of motion and pain as well as osteoarthritis of the left knee. VA outpatient records show that in April 2010, the Veteran reported constant and sharp pain in his left knee which awoke him from sleeping. He used Naproxen which helped. He had decreased range of motion, although the degrees were not indicated. In April 2012, the Veteran was afforded another QTC Services examination by VA. It was noted that the Veteran's left knee was injured in May 2006 and he underwent surgical repair. The Veteran indicated that he had flare-ups that impacted the function of the knee. Range of motion testing revealed flexion to 80 degrees which was the point when pain started. The Veteran was able to extend to 10 degrees which was the point when pain started. The Veteran could not perform repetitive motion due to pain. There was also tenderness or pain to palpation on the joint line or soft tissue of the left knee. Strength was 5/5. Anterior stability and posterior stability testing were both normal. The examiner was unable to test medial-lateral instability. There was no history of recurrent patellar subluxation or dislocation. There was no history of any meniscal condition. The Veteran used a knee brace. The examiner indicated that the Veteran would not be equally well served with an amputation of the left leg. The examiner indicated that the Veteran's left knee disability affected his ability to work since he could not walk or stand for a long time and had difficulty climbing stairs. A scar was noted due to the prior knee surgery. The examiner indicated that it was painful, but not unstable with frequent loss of the covering of skin. It was linear, 17 centimeters in length. The scar did not result in limitation of function or cause any affect on the Veteran's ability to work. X-rays revealed lucent tracks in the patella and proximal tibia, suggestive of previous location of the screws; also osteoarthritis was shown. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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. § 4.71(a), Diagnostic Code 5003. Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. 38 C.F.R. § 4.71, Plate II, shows that normal flexion and extension of the knee is from zero degrees to 140 degrees. It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation/instability or under Diagnostic Code 5258-9 for cartilage impairment. Essentially, these opinions suggest that separate compensable ratings may be assigned when reported limitation of knee motion shown is compensable or when there is X-ray evidence of arthritis together with a finding of painful motion. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words 'slight,' 'moderate,' and 'severe' as used in this code are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for 'equitable and just decisions.' 38 C.F.R. § 4.6. In considering the applicability of other diagnostic codes that may also be separately rated, the Board notes that Diagnostic Codes 5258-9, which concerns injury to cartilage of the knee. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The General Counsel has suggested in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve symptomatology caused by tears and displacements of the menisci that may be rated separately from symptoms caused by arthritis. In this case, there is no meniscus abnormality of the left knee nor is there subluxation, dislocation, or ankylosis. Thus, ratings based on those manifestations as cited above are not warranted. In addition, the Board has considered the application of other alternative codes, but finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Veteran, as noted, has been rated based on limitation of motion/painful motion on flexion. Initial Rating in Excess of 10 Percent for Left Knee, Patellar Tendon Rupture, from June 4, 2006 until June 6, 2006. The Veteran was assigned a 10 percent rating for the first few days where service connection was established, prior to the temporary total rating. The evidence available for review documents the status of the left knee post-injury, but prior to surgery. The May 2006 evaluation report documented painful flexion, although the Veteran was able to move the knee to 125 degrees. Extension was full. Although stability tests were all normal, instability was noted on several occasions by the examiner. In sum, Veteran demonstrated painful motion, with some limitation, on flexion. As such a 10 percent rating was warranted, per Court precedent decisions as well as 38 C.F.R. § 4.59. However, a higher rating was not in order as the Veteran did not have the functional equivalent of flexion limited to 30 degrees. As noted, the Veteran was not limited in extension; however, he apparently had instability of the knee. The Board finds that a 10 percent rating for that instability under Diagnostic Code 5257 was warranted, but a higher rating was not in order since the stability testing was normal. As such, the currently assigned 10 percent based on limitation/painful flexion under Diagnostic Code 5260 as well as a separate 10 percent rating based on instability of the left knee under Diagnostic Code 5257 are warranted, prior to the left knee surgery, June 6, 2006. Rating in Excess of 10 Percent for Left Knee, Patellar Tendon Rupture, Status Post Repair, from August 1, 2006. The 10 percent evaluation for limitation of flexion contemplates painful motion. 38 C.F.R. § 4.59. The evaluation is also consistent with limitation of flexion to 45 degrees. With regard to the post-surgery rating, the evidence shows that the Veteran's motion of the left knee actually decreased. His flexion was reduced to 45 degrees at worse and 80 degrees at best, both with pain. As such, the 10 percent rating, but no more, remained warranted as assigned under Diagnostic Code 5260. However, a higher rating was not in order as the Veteran did not have the functional equivalent of flexion limited to 30 degrees. In addition, during this portion of the appeal period, the Veteran also began demonstrating limitation of extension with pain to 10 degrees. In affording him reasonable doubt, the Board finds that a 10 percent, but no more, is warranted from August 1, 2006 onward under Diagnostic Code 5261. A higher rating is not warranted as the Veteran did not demonstrate the functional equivalent of extension limited to 15 degrees. The Veteran's stability testing remained normal; however, the examiner was unable to test on the last examination medial-lateral instability. The examiner did not articulate the reason why. The Board is unable to determine that there has been improvement in the instability. As such, a 10 percent rating remains warranted under Diagnostic Code 5257. A higher rating is not warranted as the testing which was performed was normal and there was no subluxation. In addition, the examiner indicated that the Veteran's post-surgical scar is painful. Although pain was not specifically noted in the area of the scar on the earlier VA examination, the Veteran did complain of overall pain, repeatedly. Thus, since the Veteran also has a painful scar, a separate 10 percent rating under Diagnostic Code 7804 is warranted. A higher rating is not warranted since he is already rated based on limitation of motion (Diagnostic Code 7805) and his scar is not of sufficient size or deep per Diagnostic Code 7801. The other codes pertaining to scars are not relevant in this case. Thus, in sum, the Veteran's left knee disability warrants a 10 percent rating based on limited/painful flexion, a 10 percent rating based on limited/painful extension, a 10 percent rating based on slight instability, and a 10 percent rating for the painful surgical scar. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent for left knee impairment of flexion for the period of June 4, 2006 to June 6, 2006, but supports a separate 10 percent rating for slight instability for that period. In addition, the preponderance of the evidence is against a rating in excess of 10 percent for left knee impairment of flexion for the period of August 1, 2006 onward, but supports a separate 10 percent rating for left knee impairment on extension for that period, a 10 percent rating for slight instability for that period, and a 10 percent rating for a painful surgical scar, for that period. In considering the claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's knee disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. Therefore, referral for consideration of an extraschedular rating is not warranted. Lastly, we note that the rating decision is based upon diagnostic code 5260. The April 2012 SSOC provides an outward appearance that the rating is based upon limitation of extension. That analysis is clearly and unmistakably erroneous. The AOJ was at liberty to reduce the evaluation for limited flexion and assign an evaluation for another factor. However, that was not done and the actual rating decision was not changed. We also note that the SSOC reported that there must be moderate instability in order to get a higher rating. This statement is inconsistent with the opinions of the General Counsel. See, C and P service FAQ dated July 19, 2001. Instability and Limitaiton of Extension Because of the temporary total rating, the Board has addressed the instability and limitation of flexion as two separate periods. However, the baseline (10 percent) evaluations are intended as continuous evaluations. ORDER For the period of June 4, 2006 to June 6, 2006, a rating in excess of 10 percent for left knee, patellar tendon rupture, based on impairment of flexion, is denied. For the period of June 4, 2006 to June 6, 2006, a separate rating of 10 percent for left knee, patellar tendon rupture, based on slight instability, is granted, subject to the law and regulations governing the payment of monetary benefits. For the period from August 1, 2006 onward, a rating in excess of 10 percent for left knee, patellar tendon rupture, based on impairment of flexion, is denied. For the period from August 1, 2006 onward, a separate rating of 10 percent for left knee, patellar tendon rupture, based on impairment of extension, is granted, subject to the law and regulations governing the payment of monetary benefits. For the period from August 1, 2006 onward, a separate rating of 10 percent for left knee, patellar tendon rupture, based on slight instability, is granted, subject to the law and regulations governing the payment of monetary benefits. For the period from August 1, 2006 onward, a separate rating of 10 percent for surgical scar due to left knee, patellar tendon, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs