Citation Nr: 1304512 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-09 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Propriety of the rating reduction from 20 percent to 10 percent for right knee chondromalacia with arthritis, effective June 3, 2004. 2. Propriety of the rating reduction from 20 percent to 10 percent for left knee chondromalacia with arthritis, effective June 3, 2004. 3. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia with arthritis. 4. Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia with arthritis. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active military duty from April 1967 to June 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). That decision found that clear and unmistakable error (CUE) existed in the Veteran's previously assigned ratings for right and left knee chondromalacia with arthritis, and thereby reduced those ratings from 20 percent to 10 percent disabling, effective June 3, 2004. In July 2010, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. The Board emphasizes that a claim for restoration of a disability rating is completely separate from a claim for entitlement to an increased evaluation. A restoration claim involves a determination as to whether a reduction in disability rating initiated by the RO was appropriate, whereas an increased rating claim is initiated by the Veteran and concerns his disagreement with the disability rating assigned for a service-connected disability. These claims require application of distinctive procedural requirements, burdens of proof and law and regulations. Thus, the issues on appeal have been characterized as shown above. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. In an October 2004 rating decision, the RO increased the disability ratings for the Veteran's chondromalacia with arthritis of the right and left knees from 10 percent to 20 percent, effective June 3, 2004. The Veteran did not initiate an appeal of this decision. 2. In the July 2007 rating decision on appeal, the RO found that there was CUE in its October 2004 rating decision and reduced the Veteran's ratings for chondromalacia with arthritis of the right and left knees to 10 percent, effective June 3, 2004. The Veteran perfected an appeal of this decision. 3. The lay and medical evidence of record at the time of the October 2004 rating decision shows that the Veteran's knees were never limited to less than 90 degrees of flexion, even when considering functional impairment due to pain, weakness, fatigability, and lack of endurance during flare-ups. 4. Chondromalacia with arthritis of the right knee is characterized by painful motion and functional flexion limited to 70 degrees or greater with no ankylosis or impairment of the tibia and fibula. 5. Chondromalacia with arthritis of the left knee is characterized by painful motion and functional flexion limited to 50 degrees or greater with no ankylosis or impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. The reduction of the disability rating for right knee chondromalacia with arthritis was proper. 38 U.S.C.A. §§ 1155, 5112, 5107 (West 2002); 38 C.F.R. §§ 3.105, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 2. The reduction of the disability rating for left knee chondromalacia with arthritis was proper. 38 U.S.C.A. §§ 1155, 5112, 5107 (West 2002); 38 C.F.R. §§ 3.105, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012). 3. The criteria for a rating higher than 10 percent for right knee chondromalacia with arthritis are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). 4. The criteria for a rating higher than 10 percent for left knee chondromalacia with arthritis are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, the Board notes that although a claim of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) was previously before the Board and remanded in March 2012, in a July 2012 rating decision, the RO granted entitlement to a TDIU. Additionally, the effective date was granted as of the date that the Veteran raised the issue of TDIU; that date was the date of the Board hearing. It was not until that point that the Veteran alleged unemployability; accordingly, the issue was not before the Board until that time. The Veteran did appeal the effective date of that grant. As this is a full grant of the benefit sought on appeal as to this issue, it is no longer before the Board. I. Duties to Notify and Assist Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). With regard to the increased rating claims, proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). Here, notice dated in March 2007 informed the Veteran of what evidence VA would seek to provide and what evidence the Veteran was responsible for providing. He was informed that, in order to substantiate his claims, the evidence needed to show that his disabilities had worsened. That letter also contained notice regarding disability ratings and effective dates, pursuant to the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter also served as notice regarding the Veteran's reduction claims. Thereafter, the Veteran's claim was initially adjudicated in July 2007. To the extent that the reduction issues decided herein are adjudicated on the basis of whether there was CUE in a prior rating decision, the VCAA is inapplicable. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Consequently, further discussion of the VCAA's notice provisions as to these issues is unnecessary. In June 2008, the RO provided the Veteran with notice regarding the rating criteria used to evaluate his disabilities. Thereafter, the December 2008 supplemental statement of the case reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Next, VA has a duty to assist the Veteran in the development of the claims. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). In this case, the RO has secured all of the pertinent medical records identified by the Veteran. He was afforded VA examinations pertinent to his claims decided herein in August 2004, April 2007, September 2008, and May 2012. The examinations were conducted by medical professionals, who solicited symptomatology from the Veteran and performed complete examinations. Although it isn't clear if the claims file was reviewed in the 2004 examination and it was not reviewed in the 2007 examination, the examiners did review the claims file in 2008 and 2012. Additionally, although it is ideal that the examiner review the claims file in every instance, the claim is based on the current severity of the Veteran's knee issues; the Board thus finds no prejudice to the Veteran due to the thorough nature of each of the VA examinations. The Board finds that the provided examinations are adequate. During the July 2010 Board hearing, the undersigned explained the issue on appeal, suggested the submission of additional evidence, and questioned the Veteran in a way to solicit any potentially outstanding pertinent evidence related to the claims decided herein. These actions provided an opportunity for the appellant and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's and his representative's written and oral statements are of record. No available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, this appeal was remanded by the Board in March 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain additional VA records, provide the Veteran with an examination, and adjudicate the TDIU claim. VA records were obtained and associated with the claims file, an examination was provided in May 2012, and TDIU was granted in a 2012 rating decision. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). II. Analysis When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In this case, the compensation paid to the Veteran did not decrease as a result of the reductions. Therefore, this notice is not required. In this case, the RO did not reduce the ratings on the basis of improvement. It reduced the ratings on the basis of finding CUE in the October 2004 RO decision. 38 C.F.R. § 3.105(a). Therefore, the provisions of 38 C.F.R. § 3.344 are not for application. In October 2004, the RO increased the disability ratings for the Veteran's right and left knee chondromalacia with arthritis to 20 percent. The Veteran was notified of this decision in a letter dated later that month and neither appealed the decision nor submitted new and material evidence within the one-year appeal period. Consequently, the decision became final. See 38 C.F.R. § 20.1103. However, one exception to the finality doctrine discussed above occurs when CUE is found in a prior RO decision. If the evidence establishes such CUE, the prior decision will be reversed or amended; a finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.105(a). In this case, the Veteran has not alleged CUE, but the RO found, in a July 2007 rating decision, that there was CUE in the October 2004 rating decision to the extent that it granted ratings of 20 percent for the right and left knee chondromalacia with arthritis. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be 'undebatable' and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). A finding of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2012). In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (2001). Under VA's Rating Schedule, disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2012). Limited movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, and interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under Diagnostic Code 5260, flexion of the leg is rated 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. These same rating criteria were in effect at the time of the October 2004 rating decision. The Veteran filed a claim for increased ratings for his knee disabilities in June 2004. The only pertinent evidence associated with the claims file prior to the October 2004 rating decision was the August 2004 VA examination report. In it, the Veteran complained of pain as the principle factor in his disabilities. The knees also seemed to catch and lock up. They felt tight when he got up from sitting or stood for periods of time. He used a cane but not braces. His knees bothered his occupational activity because they limited his standing and mobility. He was not involved in any sports activities. He was able to drive and attend meetings. He did not mow the lawn but did try to keep a garden every year. On examination, the knees moved from 0 to 125 degrees, but flexion was painful at 110 degrees. There was some crepitus anteriorly with both knees. The ligaments and patella were stable. The Veteran reported that the left knee had more pain than the right. There was some impairment as a result of pain, fatigue, weakness, and lack of endurance following repetitive use. The examiner opined that pain and weakness were factors in the Veteran's disability. The pain caused an increase of the Veteran's impairment, which the examiner estimated as 20 degrees of movement. The Veteran had some flare-ups, but they were brief and activity-related. Based on the record at the time of the October 2004 rating decision, the Board finds that there is CUE in that decision to the extent that it increased the ratings for the Veteran's right and left knee chondromalacial with arthritis disabilities to 20 percent. Even when the Board accepts as true all medical evidence and lay statements, there is nothing to suggest the presence of the functional equivalent of flexion of either knee to 30 degrees or to midway between 45 and 30 degrees. The August 2004 examiner estimated that the Veteran lost 20 degrees of flexion due to pain. On examination, the Veteran could flex pain free to 110 degrees for each knee. This further loss of motion only suggests that flexion limited to the functional equivalent of 90 degrees is demonstrated. This does not meet or come close to approximating the criteria needed for a 20 percent rating for either knee based on limitation of motion. Furthermore, pain was not mentioned regarding extension; it is clear that the pain limited flexion only. The Board notes that the RO, in the October 2004 rating decision, erroneously reported that the examiner estimated that the Veteran lost 20 percent of motion due to pain, instead of 20 degrees. However, no matter how the calculation is conducted and whether it is based upon the Veteran's full range of motion to 125 degrees or his painless motion to 110 degrees, this does not suggest or imply that the Veteran's motion of either knee even came close to demonstrating the functional equivalent of flexion limited to 30 degrees. The Veteran never alleged that this was the case, and there was no other pertinent medical evidence of record prior to the October 2004 rating decision. Therefore, reasonable minds could not differ on whether the Veteran demonstrated the symptomatology of either knee that more nearly approximates the criteria for 20 percent ratings, and this error manifestly changed the outcome of the October 2004 determination. The Board has considered the application of other diagnostic codes in effect at that time, in order to see if this error would have manifestly changed the outcome at the time it was made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under alternative diagnostic codes, a 20 percent evaluation is warranted for the following: arthritis with no limitation of motion, but x-ray evidence of involvement of 2 or more major joints or minor joint groups, with occasional incapacitating exacerbations; moderate knee disability due to malunion of the femur; moderate recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; limitation of extension to 15 degrees; and malunion of the tibia and fibular with moderate knee disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, Note (1), 5255, 5257, 5258, 5261, 5262 (2004). Here, the examination indicated there was no instability and extension was to zero degrees. Additionally, there was no evidence of ankylosis, dislocated semilunar cartilage, impairment of the tibia or fibula, and although there was arthritis, there was limitation of motion. Thus the evidence does not support a 20 percent evaluation under any of these codes. As such, the Board finds that there was CUE in the October 2004 rating decision that granted increases of the Veteran's right and left knee chondromalacia with arthritis to 20 percent. Therefore, the reduction implemented via the July 2007 rating decision on this basis was proper. Given the finding of CUE in the October 2004 rating decision, the issues remaining to be considered are entitlement to disability ratings in excess of 10 percent for right and left knee chondromalacia with arthritis. The August 2004 VA examination report has already been detailed above. In April 2007, the Veteran underwent VA examination. He complained of stiffness, pain, tightness, swelling, and locking. He used a cane and also used a brace intermittently on the right knee. He missed 25 to 30 days of work in the past year due to his knees. Weightbearing activities and rising from a seated position increased knee pain. On examination, right knee range of motion was 0 to 110 degrees, and left knee range of motion was 0 to 95 degrees. The knees were not painful during this range of motion. The Veteran was tender diffusely about both knees. There was no instability on the right and mild instability on the left. Additional limitation following repetitive use was increased pain with no further loss of motion. There were no flare-ups, and there was no effect of incoordination, fatigue, weakness, or lack of endurance on the function of either knee. In September 2008, the Veteran underwent VA examination. He complained of essentially equal pain in both knees with weightbearing and walking. He did not have pain at rest. He had increased limitation with repetitive use of the knees directly related to pain. He did not have incapacitating flare-ups of knee pain. On examination, active and passive range of motion was pain free from 0 to 95 degrees in the right and left knees. Further motion was limited by the Veteran's obesity. Repetitions were done for both knees. The Veteran complained of pain in the left patella, and there was significant crepitus of the left patella during repetitive motion. There was minimal pain in the right knee and no crepitus during repetitions. There was no loss of motion, fatigability, or incoordination. The diagnosis was chondromalacia of the patella bilaterally. The examiner noted that the Veteran was currently working in a sedentary job and doing well. In July 2010, the Veteran testified before the undersigned that he was not able to stand for any period of time and was limited in the distance he could walk. He never climbed stairs. He had limited ability to bend his knees. VA outpatient treatment records, beginning in November 2010 indicate that the Veteran regularly complained of his knee pain. On one occasion in October 2011, the Veteran's range of motion was documented, and flexion was to 90 degrees in each knee with pain noted. Extension was to 0 degrees. In May 2012, the Veteran underwent VA examination. He complained of bilateral anterior knee pain with stiffness and increased pain with walking over one-half block or standing for five minutes. He walked slowly but with a nonantalgic gait. He reported flare-ups during which he fell five to six times per year. Range of motion of the right knee was flexion to 110 degrees, with pain beginning at 70 degrees. Extension was to 0 degrees, where pain began. Left knee flexion was to 100 degrees, with pain beginning at 50 degrees. Extension was to 0 degrees, where pain began. The Veteran was able to perform three repetitions, after which flexion was the same for each knee. He had no additional limitation in range of motion. The Veteran did, however, have functional loss, impairment or additional limitation, which consisted of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Muscle strength was normal, and there was no evidence of recurrent patellar subluxation or dislocation. The Veteran used a cane on a constant basis for ambulation. The examiner indicated that, while the Veteran could not engage in his previous employment as a funeral director due to his inability to stand and walk for prolonged periods of time, he was able to engage in sedentary employment. However, the examiner indicated that he was not qualified for other work and would, thus, be unable to engage in gainful employment. The Board notes at the outset of this discussion that, during the course of the appeal, service connection was established and separate ratings assigned for instability of the right and left knees; the effective date assigned was February 27, 2007, the date of the Veteran's claim for an increased evaluation for his knees. Since the assignment of these ratings, the Veteran has not pursued these claims. Therefore, issues regarding a separate evaluation for instability for either knee, or an increased evaluation for instability for either knee, are not before the Board, and are not considered herein. See 38 C.F.R. § 5257 (2012); VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). The RO assigned a 10 percent rating based upon limited motion and functional impairment. This 10 percent rating is consistent with flexion limited in each knee to 45 degrees. In order to warrant a higher rating, there must be the functional equivalent of flexion to 30 degrees or less. See 38 C.F.R. § 4.7; DeLuca, 8 Vet. App. at 204-7. However, none of the lay or medical evidence of record suggests that functional impairment of the left or right knee has ever resulted in flexion approximating or limited to 30 degrees or less. At its most limited, and taking into consideration all additional impairment caused by pain after repetitious movement, the Veteran's right knee painlessly flexed to 70 degrees. Under the same circumstances, the Veteran's left knee maintained flexion without pain or other impairment to 50 degrees. This was shown on examination in May 2012, and none of the other evidence of record shows or suggests that the Veteran's right or left knee flexion has been more limited than shown on this report. The Veteran has not alleged in oral or written statements that functional flexion of either knee was limited to 30 degrees or to midway between 45 and 30 degrees. Therefore, a disability rating in excess of 10 percent for either knee under Diagnostic Code 5260 cannot be assigned. The Board has considered the application of other diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Although the 2012 VA examination noted a right meniscal tear with frequent episodes of joint pain, that joint pain is assessed as part of the 10 percent evaluation; thus a separate evaluation is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012); See 38 C.F.R. § 4.14 (2012) (the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes pyramiding and is prohibited); but see Esteban v. Brown, 6 Vet. App. 259 (1994) (finding that when a veteran has separate and distinct manifestations attributable to the same injury, however, he should be compensated under different diagnostic codes). Additionally, an increased evaluation under that diagnostic code is not warranted because the 2012 VA examiner specifically noted only episodes of joint pain; the boxes for joint locking and joint effusion were not marked. The 2008 VA examiner noted that there appeared to be small effusion of both knees, but indicated that it was difficult to assess due to the Veteran's weight. The 2007 VA examiner noted no effusion in either knee. The Board finds that the 2007 and 2012 findings of no effusion outweigh the non-certain notation of possible effusion at the 2008 VA examination. Thus, the Veteran's symptoms do not more closely approximate the 20 percent evaluation under this diagnostic code. See 38 C.F.R. § 4.7. Furthermore, there was no limitation of motion and no evidence of impairment of the femur, ankylosis, or malunion of the tibia or fibular. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, Note (1), 5255, 5258 (2012). Evaluations in excess of 10 percent are not warranted for symptomatic removal of semilunar cartilage, or for genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Code 5259, 5263 (2012). An increased evaluation under alternative diagnostic codes is not warranted. Separate ratings may be assigned under Diagnostic Codes 5260 and 5261, where there is compensable limitation of flexion and extension. See VAOPGCPREC 9-2004 (2004). Here, however, the lay and medical evidence shows that extension was not limited to 10 degrees even with repetitive motion, and a separate rating for limitation of extension is therefore not warranted for either knee. There are no other potentially applicable rating criteria, as there is no evidence of ankylosis or impairment of the tibia and fibula. The Board reiterates that the Veteran is already in receipt of separate evaluations for instability of each knee, the ratings for which are not on appeal. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's right and left knees are fully contemplated by the applicable rating criteria. Limitation of motion, recurrent subluxation, lateral instability, impairment of the tibia and fibula, and additional functional impairment were all considered. The diagnostic criteria, therefore, reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun, 22 Vet. App. at 115. In any event, the Board notes that the examiner that conducted the May 2012 VA examination opined that the Veteran was unable to work due to his knee disabilities because he was not qualified for anything other than employment that was not sedentary. However, the September 2008 VA examination report shows that the Veteran was currently working in a sedentary job and doing well at it. Therefore, the Board concludes that the opinion provided by the May 2012 VA examiner is based on inaccurate history and does not establish marked interference with employment caused by the knee disabilities. Furthermore, there is no evidence of frequent hospitalization due to the Veteran's knee disabilities. Therefore, referral for consideration of an extraschedular rating for either knee disability is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's right and left knee chondromalacia with arthritis symptoms more nearly approximate the criteria for 10 percent ratings. The benefit-of-the-doubt doctrine is therefore not for application, and the claims for higher ratings must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The rating reduction from 20 percent to 10 percent for right and left knee chondromalacia with arthritis, effective June 3, 2004, was proper. Entitlement to a rating higher than 10 percent for right knee chondromalacia with arthritis is denied. Entitlement to a rating higher than 10 percent for left knee chondromalacia with arthritis is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs