Citation Nr: 1305874 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 06-36 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for meniscectomy, right knee, with degenerative joint disease. 2. Entitlement to a rating in excess of 10 percent for a left knee disability, diagnosed as osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran had active military service from May 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In this decision the RO increased the Veteran's rating for his service-connected meniscectomy, right knee with degenerative joint disease, from 10 to 20 percent, and continued a 10 percent rating for his service-connected left knee disability. In November 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing. A transcript of the hearing is of record. This matter was previously before the Board in March 2012. These issues were remanded for additional development the issues of entitlement to higher ratings for right and left knee disabilities. In this regard, the Board directed that the Veteran be afforded a new, contemporaneous examination to assess the present severity of his knee impairments in light of his assertions of worsening symptomatology, and to obtain any outstanding treatment records. The record shows that the Veteran underwent a VA examination for his knees in April 2012 and additional treatment records dated from July 2006 through October 2012, have been obtained. Thus, there has been substantial compliance with the Board's March 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Review of Virtual VA reveals pertinent records as noted in the facts below. In certain circumstances, a claim for TDIU can be inferred as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, a formal claim for TDIU was considered and denied by the RO during the pendency of the claim for an increase now on appeal to the Board, in May 2009. However, a VA Memorandum on file dated in September 2009 found there was clear and unmistakable error with respect to the May 2009 decision and further found that additional development of the issue was warranted. It was subsequently denied in a May 2011 rating, that has not been appealed. In light of these circumstances, the Board declines to apply Rice and take jurisdiction over a TDIU claim. Instead, the matter is referred to the RO for any appropriate consideration. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability has been manifested by some limitation of flexion with pain; there is no instability, subluxation or limitation of extension. Remaining functional flexion is better than 15 degrees. 2. Prior to September 21, 2010, the Veteran's service-connected left knee disability has been manifested by some limitation of flexion, but without functional loss to include pain; there is no instability, subluxation or limitation of extension. Remaining functional flexion is better than 30 degrees. 3. From September 21, 2010, the Veteran's service-connected left knee disability has been manifested by some limitation of flexion with pain; there is no instability, subluxation or limitation of extension. Remaining functional flexion is better than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for meniscectomy, right knee, with degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2012). 2. For the period prior to September 21, 2010, the criteria for a rating higher than 10 percent for left knee disability, diagnosed as osteoarthritis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5259 (2012). 3. For the period from September 21, 2010, the criteria for a rating higher than 10 percent, to 20 percent, but no more, for left knee disability, diagnosed as osteoarthritis, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, the appellant was provided with initial notice of the VCAA in January 2006, which was prior to the June 2006 decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied. VA has fulfilled its duty to notify the appellant in this case. In the January 2006 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims being decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F. 3d 1483, 1485 (Fed. Cir. 1997). Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claim for increased ratings for right and left knee disabilities being decided herein, the Board finds that the appellant is not prejudiced by a decision at this time since the appellant was provided with notice of the disability rating and effective date elements in a March 2006 letter. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With respect to the claim for higher ratings for knee disabilities being decided herein, available service and VA treatment records have been obtained. Also, the appellant has been afforded appropriate and adequate VA examinations as they reflect a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinions supported by medical rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims for increased ratings for right and left knee disabilities. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims for higher ratings below. II. Facts The RO's grant of service connection for meniscectomy, right knee, dates back to the 1970s with an initial rating assignment of 0 percent. In March 1996, the RO increased the rating to 10 percent. Records from the Social Security Administration show that the Veteran was found in March 2003 to be disabled effective in October 2001 due to a primary diagnosis of osteoarthrosis and allied disorders and a secondary diagnosis of disorders of the back (discogenic and degenerative). These records include a December 2001 Internal Medical Evaluation report reflecting the Veteran's report of pain, swelling and stiffness in his knees, right greater than left. He also reported that standing too long and walking exacerbated the pain in both knees. Findings revealed knee flexion to be 130 degrees out of 135 degrees bilaterally with crepitation. The Veteran was diagnosed as having history of arthralgia in his knees, status post arthroscopic surgeries twice bilaterally, rule out degenerative joint disease. Knee examination revealed mild swelling and decreased range of motion in flexion. The examiner did not reveal any gross deformities, ligamentous instability, varus/or valgus stressing. However, mild bilateral crepitation was noted on range of motion. An October 2002 treatment record shows that right knee findings revealed swelling, tenderness and decreased range of motion of flexion at 90 out of 150 degrees. The Veteran was diagnosed as having severe osteoarthritis of the right knee with pending right total knee replacement. In August 2003, the RO granted service connection for a left knee disability, as secondary to his service-connected meniscectomy of the right knee, and assigned a 10 percent rating, effective in February 2003. In November 2005, the Veteran filed a claim for increased ratings for his service-connected disabilities. His right and left knee disabilities were each rated 10 percent disabling at that time. At a February 2006 VA general examination, the Veteran reported that activities put pressure on his knees causing pain and swelling. He also reported that his knees gave out. He estimated that his knee pain averaged a 9.5 on a scale out of 10 (10 being the worst). He said his right knee bothered him the most and he wore bilateral knee braces when he walked. He was noted to have last worked in 1999 doing photocopying for a company and had a worker's compensation injury due to a fall at work. He said his employer told him not to come back. X-rays findings of the left knee in January 2005 revealed no arthritic changes and the right knee showed degenerative joint disease with narrowing of the medial and lateral compartments. Examination of the right knee revealed a one inch scar medially. There were no deformities, swelling and no palpable tenderness. Right knee flexion was from 0 to 120 degrees with pain medially at 120 degrees, minus 20 degrees secondary to pain. Left knee flexion was 0 to 130 degrees without pain. Extension was from 0 degrees or full flexion without pain bilaterally. The Veteran had stable medial and lateral ligaments bilaterally. He also had stable anterior and posterior cruciate ligaments bilaterally. In addition he had stable medial and lateral meniscus bilaterally. Active range of motion did not produce any weakness, fatigue, or incoordination. The Veteran's gait was altered favoring the right knee and he used a cane. There was no laxity or instability present in either knee. The Veteran was diagnosed as having right knee meniscectomy and two other surgeries on the right knee with chronic pain and x-rays showing degenerative joint disease with narrowed medial and lateral compartments and left knee sprain, likely than not related to the right knee condition. VA outpatient records include a March 2006 record noting that the Veteran was able to walk one to two miles before experiencing severe discomfort in his knees. He was noted to use Tylenol and tramadol for discomfort and walked with a cane. By subsequent rating, a 20 percent rating was assigned for the right knee impairment, effective the date of the claim for an increase. In a statement dated in June 2007, the Veteran reported that his knees were getting worse and he experienced constant knee pain. He said he was told the only way to eliminate the pain would be to get a total knee replacement, but that he should wait until he was older to undergo the procedure. On file is a January 2008 vocational assessment report that contains the Veteran's assertion of chronic pain to both knees which was exacerbated by sitting, standing and walking. The Veteran reported at that time that his knees were getting worse. He said he had fallen a few times and used a cane and soft knee braces. He was not found to be a candidate to achieve a vocational goal at that time due to multiple physical limitations. Findings at a QTC examination on September 21, 2010 show that the Veteran had an abnormal walk due to painful knees and required a cane for ambulation. There was edema of the right knee, tenderness and pain with range of motion. Additional right knee findings showed no sign of instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or draining. There was no subluxation. Crepitus was noted and no genu recuvatum and locking pain. Left knee findings revealed tenderness and pain with range of motion. There were no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage. There was also no subluxation. There was crepitus and no genu recurvatum and locking pain. There was no knee ankylosis. Range of motion findings revealed right knee flexion from 0 to 140 degrees with pain at 130 degrees. Repetitive range of motion was possible with no additional degree of limitation. Left knee range of motion was from 0 to 140 degrees with pain at 130 degrees. There was repetitive range of motion from 0 to 140 degrees with no additional degree of limitation. The examiner reported that with respect to the right and left knees, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The ligament stability tests were all within normal limits for the right and left knees. Neurological findings of the lower extremities were unremarkable. Degenerative arthritic changes were noted by x-ray for the left knee and there was mild to moderate osteoarthritis with more prominent changes in the lateral compartment. The examiner changed the diagnosis from menisectomy, right knee with degenerative joint disease, to meniscectomy, right knee with degenerative joint disease with scar. The subjective factors included pain in the right knee with weight bearing and the objective factors were scar as well as pain with range of motion. Similarly, the examiner changed the left knee diagnosis from left knee condition associated with meniscectomy, to left knee osteoarthritis with scar. The examiner remarked that the effect of the Veteran's condition on his usual occupation was none as the Veteran reported that he had been disabled since 1999 with no usual occupation. He said the effect of the condition on the Veteran's daily activity was mild to moderate for certain high level chores such as yard work, cleaning, and shopping which would increase task completion time secondary to pain, although it would not be contraindicated. He said that self care activities such as eating, grooming, bathing, dressing, toileting as well as communication, social cognition were not significantly affected by the Veteran's conditions evaluated that day. Scar findings at the September 2010 VA examination revealed a linear scar precisely located right anteromedial knee surgical scar. The entire scar measured 5.5 centimeters (cm) by .1 cm. The scar was not painful on examination. There was no breakdown. The scar was superficial with no underlying tissue damage. Inflammation was absent and there was no keloid formation. The scar was not disfiguring and did not limit motion. There was no limitation of function due to the scar. There were also three arthroscopic surgical scars on the left anterior knee. The scars measured .5 cm each. A linear scar was noted measuring 1.5 cm by .1 cm and was not painful on examination. There was no skin breakdown. The scar was superficial with no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation and the scar was not disfiguring. The scar did not limit the Veteran's motion and there was no limitation of function due to the scar. The Veteran testified at a Board video conference hearing in November 2011 that he had had three surgeries on his right knee and two on his left knee. He reported recurring pain and said that his knee disabilities had only gotten worse. He said his right knee caused him to fall and he used a walker most of the time. He said he also uses a cane at times. He denied taking any medication stating that it didn't help. He said his doctors advised him that he has to deal with the pain until the pain gets to a point that he will need knee replacement surgery. He estimated that he could walk a quarter of a mile before having to stop and rest. He said he wasn't able to squat or climb stairs. He said he was unable to provide a specific number regarding the times that his knees lock or dislocate. He said he wasn't really sure if his doctor recorded in his records that he has knee instability. Virtual VA records show that bilateral knee x-rays were performed by VA in March 2012 showing small joint effusion and mild degenerative disease of the lateral and patellofemoral compartment, right knee; and small joint effusion and complete loss of lateral compartment joint space left knee. The report contains notations to notify the Veteran that he had arthritis in both knees and to see an orthopedic surgeon for possible joint injections. A subsequent record in March 2012 shows that the Veteran was notified by VA and informed VA at that time that he did not want to be referred to an orthopedic surgeon and did not want any injections. Range of motion findings at a VA examination in April 2012 show right knee flexion to 90 degrees with pain beginning at 70 degrees. Right knee extension ended at 0 degrees with pain at 0 degrees. Left knee flexion was to 90 degrees with pain at 70 degrees. Left knee extension went to 0 degrees with pain at 0 degrees. Additional limitation in range of motion was noted following repetitive-use testing. After repetitive testing, right knee flexion was to 70 degrees and extension was to 0 degrees. Left knee flexion was to 70 degrees with extension to 0 degrees. Functional loss was noted with less movement than normal in both knees and with pain on movement. Both knees had interference with sitting, standing and weight bearing. Muscle testing on knee flexion and extension was 5/5 in both knees. There was no instability found, either anteriorly, posteriorly or medial-laterally. There was also no indication of patellar subluxation/dislocation. The Veteran was noted to have a history of a meniscus tear in both knees with meniscectomies and frequent episodes of joint pain. He was not found to have had a total knee replacement. Findings revealed severe tenderness, bilateral knees, and bony protuberance of the medial joint line on the left indicating no joint space. He was noted to constantly use a walker. The Veteran was not found to have the functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. X-ray findings of the knees in March 2012 were recorded on the report. There was no x-ray evidence of patellar subluxation. The examiner reported that the Veteran was trained as a restaurant chef, but was unable to perform activities that require walking or standing without assistance preventing him from this profession. He said that regarding the bilateral knees, the Veteran would be able to perform sedentary work, but would be unable to perform labor types of activities that required climbing, bending, lifting, etc. Virtual VA includes a September 2012 neurology clinic outpatient note showing that the Veteran took a fall approximately one week earlier when he lost left knee/ leg strength going around a curve. III. Analysis A. Pertinent Law and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (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. § 4.1 (2012). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 112, 126-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation 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. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Degenerative and traumatic arthritis, established by X-ray findings, are rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The Board notes that the terms "moderate" and "marked" in the criteria are not defined in the rating schedule. Therefore, rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of flexion). Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. Normal range of motion of the knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Instability of the knee is rated under Diagnostic Code 5257. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. Knee disabilities may also be rated under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 (2012). Under Diagnostic Code 5256, ratings of up to 60 percent are available for ankylosis of the knee. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semilunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating may be assigned for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, ratings of 10, 20, and 30 percent, respectively, can be assigned for malunion of the tibia and fibula with slight, moderate, or marked knee or ankle disability. If there is nonunion of the tibia and fibula, with loose motion requiring a brace, a 40 percent rating is assigned. Finally, Diagnostic Code 5263 provides a single 10 percent rating for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both limitation of motion due to arthritis and instability, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). The basis for this opinion was that the applicable rating criteria, "suggest that those Codes apply either to different disabilities or to different manifestations of the same disability..." VAOPGCPREC 23-97. The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X- ray findings and limitation of motion, limitation of motion under Code 5260 or Code 5261 need not be compensable but must at least meet the criteria for a zero percent rating. VA's General Counsel further explained that, if a veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. B. Discussion Right Knee Disability The Veteran is appealing the RO's assignment in June 2006 of a 20 percent rating for his service-connected meniscectomy, right knee, with degenerative joint disease. The RO assigned this rating under 38 C.F.R. § 4.71a, Diagnostic Code 5258. As noted, this code contemplates cartilage, semilunar, dislocated, with frequent episodes of "locking", pain, and effusion into the joint. The General Counsel explained in VAOPGCPREC 9-98 (August 14, 1998), that removal of semilunar cartilage may result in complications producing loss of motion, and, consequently, Diagnostic Code 5259 contemplates limitation of motion as a symptom so as to warrant consideration of the holding in Deluca. Therefore, to award the Veteran a disability rating based on limitation of motion (Codes 5260 and/or 5261) and a separate disability rating under Diagnostic Code 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding, as these codes both contemplate limitation of motion. Based on the reasoning expressed in that opinion, and the nature of the disabilities to which these codes apply, the Board believes that Diagnostic Code 5258, which pertains to dislocated semilunar cartilage, also contemplates limitation of motion; thus, to assign separate disability ratings under Diagnostic Code 5258 and Diagnostic Codes 5003, 5260 and/or 5261 would also violate the rule against pyramiding. 38 C.F.R. § 4.14. In terms of an increased, alternate rating under the limitation of motion codes (Diagnostic Codes 5003, 5260, and/or 5261), the Board does not find that a higher rating is warranted, even when functional loss is considered due to symptoms such as pain. This is so based on the actual limitation of motion findings that the Veteran demonstrated with respect to the right knee during the pendency of this appeal, to include flexion of 0 to 120 degrees in February 2006 with pains medially at 120 degrees, minus 20 degrees secondary to pain, and 0 to 140 degrees in September 2010 with pain at 130 degrees. Although the Veteran's right knee flexion did decrease to 90 degrees in April 2012 with pain at 70 degrees, this finding is still commensurate with a less than compensable rating under Code 5260 based on a strict adherence to the rating criteria. See 38 C.F.R. § 4.71a, Plate I. Moreover, the findings do not even meet the criteria under Code 5260 for a noncompensable rating. A noncompensable rating under Code 5260 requires limitation of flexion to 60 degrees. In terms of extension, the Veteran has repeatedly demonstrated normal extension to 0 degrees at the February 2006, September 2010, and April 2012 examinations, albeit with pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. With respect to functional loss, as noted, the Veteran did demonstrate objective evidence of pain on motion at these examinations. In addition, various VA outpatient records reflect the Veteran's complaints of right knee pain and show that he has worn knee braces over this period and uses a cane. In terms of other factors for functional loss, the examiner revealed at the February 2006 VA examination that active range of motion did not produce any weakness, fatigue, or incoordination. Similarly, the September 2010 QTC examiner reported that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Thus, even after considering that some limitation of flexion is shown, together with objective evidence of pain on motion, the Board does not find that the level of impairment resulting from the Veteran's right knee disability is comparable to a 30 percent rating under Diagnostic Code 5260 requiring flexion limited to 15 degrees. See 38 C.F.R. §§ 4.40, 4.45, 4.59. While the Board has considered the VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004, where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg, this does not apply to the Veteran's case given that he has not demonstrated any limitation of motion on extension and, in fact, has not demonstrated a compensable rating under either Code 5260 or 5261. Also, as indicated above, the Veteran's present 20 percent rating for the right knee under Diagnostic Code 5258 reflects noncompensable limitation of motion that is accompanied by symptoms such as pain and locking. Therefore, the Board finds that the current 20 percent rating already contemplates the Veteran's functional loss, and that an increased rating under Deluca is not warranted at any point during the pendency of this appeal. The remaining applicable diagnostic codes relating to knee disabilities include Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). As there is no evidence of record showing that the Veteran has ankylosis of the right knee, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum, these diagnostic codes are not applicable. In fact, the Veteran was specifically found to not have knee ankylosis or genu recurvatum at the September 2010 VA examination. While the Veteran's right knee disability has been rated based on the orthopedic manifestations, the Board has also considered whether there are any skin, muscular, or neurological manifestations of the disability that could result in separate ratings. As for the skin, the Veteran was found at the September 2010 VA examination to have a right knee arthroscopic surgical scar measuring 5.5 cm by .1 cm. However, scar findings at the examination were unremarkable. Moreover, the Veteran has not complained of any scar symptomatology with respect to his right knee. Disabilities of the muscles have also not been shown nor are there any associated complaints in the records. Similarly, there have been no neurological manifestations of the left knee disability or a showing of any affected nerves. For the reasons articulated, the preponderance of the evidence is against the claim for a higher than 20 percent rating for the Veteran's service-connected right knee disability. 38 U.S.C.A. § 5107(b). In arriving at this conclusion, the Board has considered whether assignment of "staged" ratings under Fenderson v. West, 12 Vet. App. 119, 126-27 (1999), was appropriate. Left Knee Disability The Veteran is appealing the RO's assignment of a 10 percent rating for his service-connected left knee disability. The RO assigned this rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. As noted, this code contemplates cartilage, semilunar, removal of, symptomatic. The General Counsel explained in VAOPGCPREC 9-98 (August 14, 1998), that removal of semilunar cartilage may result in complications producing loss of motion, and, consequently, Diagnostic Code 5259 contemplates limitation of motion as a symptom so as to warrant consideration of the holding in Deluca. Therefore, to award the Veteran a disability rating based on limitation of motion (Codes 5260 and/or 5261) and a separate disability rating under Diagnostic Code 5259 would violate 38 C.F.R. § 4.14 and the rule against pyramiding, as these codes both contemplate limitation of motion. Accordingly, separate disability ratings under Diagnostic Code 5259 and Diagnostic Codes 5003, 5260 and/or 5261 is not warranted. As far as an increased, alternative rating under the limitation of motion codes (Diagnostic Codes 5003, 5260 and/or 5261), the Board does not find that a higher than 10 percent rating is warranted, even when functional loss is considered due to symptoms such as pain. This is so based on the actual limitation of motion findings that the Veteran demonstrated with respect to the left knee during the pendency of this appeal, to include normal or near normal range of motion findings with flexion of 0 to 130 degrees in February 2006 without pain, and 0 to 140 degrees in September 2010 with pain at 130 degrees. Although the Veteran's flexion did decrease to 90 degrees in April 2012 with pain at 70 degrees, this finding is still commensurate with a less than compensable rating under Code 5260 based on a strict adherence to the rating criteria. See 38 C.F.R. § 4.71a, Plate I. Moreover, the findings don't even meet the criteria under Code 5260 for a noncompensable rating. A noncompensable rating under Code 5260 requires limitation of flexion to 60 degrees. In terms of extension, the Veteran has repeatedly demonstrated normal extension to 0 degrees at the February 2006, September 2010 and April 2012 examinations, albeit with pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. With respect to functional loss, as noted, the Veteran did demonstrate objective evidence of pain on motion at the September 2010 and April 2012 examinations. In addition, various VA outpatient records reflect the Veteran's complaints of left knee pain and show that he has worn knee braces over this period and uses a cane. In terms of other factors for functional loss, the examiner revealed at the February 2006 VA examination that active range of motion did not produce any weakness, fatigue, or incoordination. Similarly, the September 2010 VA examiner reported that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Thus, even after considering that some limitation of flexion is shown, together with objective evidence of pain on motion, the Board does not find that the level of impairment resulting from the Veteran's left knee disability is comparable to a 20 percent rating under Diagnostic Code 5260 requiring flexion limited to 30 degrees at any point during the pendency of this appeal. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board also has considered the VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004, where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. This, however, does not apply to the Veteran's case given that he has not demonstrated any limitation of motion on extension and, in fact, has not demonstrated a compensable rating under either Code 5260 or 5261 based on the limitation of motion criteria. Notwithstanding the findings above, in terms of the Veteran's left knee, the evidence is consistent with the Veteran's assertions that the disability has worsened during the pendency of this appeal. Most notable is evidence showing objective evidence of pain on motion and osteoarthritis in the left knee. Unlike the February 2006 examination report containing the Veteran's assertion that his right knee bothered him the most and x-ray findings revealed no arthritic changes in the left knee, in addition to painless motion in the left knee from 0 to 130 degrees, the September 2010 VA examination report reflects x-ray findings of degenerative arthritic changes in the left knee and left knee flexion from 0 to 140 degrees with pain at 130 degrees (emphasis added). Moreover, x-ray findings in March 2012 revealed a complete loss of lateral compartment joint space in the left knee. Also notable, as shown above, range of motion on flexion were the same in both the right and left knees at the September 2010 QTC and April 2012 VA examinations. Accordingly, in light of findings as of September 2010 which show worsening left knee symptomatology by way of some limitation of motion with pain and x-ray findings of left knee arthritis, the Board finds that the evidence supports an increased rating, to 20 percent, for the left knee by analogy under Code 5258, effective from the date of the September 21, 2010, QTC examination. As this rating reflects noncompensable limitation of motion that is accompanied by symptoms such as pain and locking, a higher than 20 percent rating under Deluca is not warranted. Additional considerations include a separate rating under Code 5257 for recurrent left knee subluxation or lateral instability; however, the evidence does not support such a rating. Although the Veteran has complained that his left knee periodically gives out of him and he wears a knee brace, VA findings repeatedly note that the Veteran's left knee ligaments were stable with no subluxation. In this regard, findings at the VA examinations in February 2006, September 2010 and April 2012 specifically note that the Veteran's ligaments were stable and there was no subluxation. While a Virtual VA record dated in September 2012 relays the Veteran's report that he fell one week earlier when he lost left knee/leg strength going around a curve, muscle testing at the April 2012 VA examination was 5/5 in both knees and, as stated, there was no instability found. In short, the evidence does not meet the criteria under Code 5257 for a compensable rating and therefore a separate rating under this code is not warranted. 38 C.F.R. § 4.71a. VAOPGCPREC 9-98. The remaining applicable diagnostic codes relating to knee disabilities include Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). As there is no evidence of record showing that the Veteran has ankylosis of the right knee, impairment of the tibia and fibula, or acquired, traumatic genu recurvatum, these diagnostic codes are not applicable. In fact, the Veteran was specifically found to not have knee ankylosis or genu recurvatum at the September 2010 VA examination. While the Veteran's left knee disability has been rated based on the orthopedic manifestations, the Board has also considered whether there are any skin, muscular, or neurological manifestations of the disability that could result in separate ratings. As for the skin, the Veteran was found at the September 2010 VA examination to have left knee scars due to arthroscopic surgeries. However, scar findings at the examination were unremarkable. Moreover, the Veteran has not complained of any scar symptomatology with respect to his left knee. Disabilities of the muscles have also not been shown nor are there any associated complaints in the records. Similarly, there have been no neurological manifestations of the left knee disability or a showing of any affected nerves. For the reasons articulated, the preponderance of the evidence is against the claim for a higher than 10 percent rating for the Veteran's service-connected left knee disability, diagnosed as osteoarthritis, for the period prior to September 21, 2010, and the evidence supports a higher rating to 20 percent, but no more, for the period from September 21, 2010. 38 U.S.C.A. § 5107(b). In arriving at this conclusion as is explained above, the Board has considered whether assignment of "staged" ratings under Fenderson v. West, 12 Vet. App. 119, 126-27 (1999), was appropriate. Extraschedular Consideration In this appeal, the Veteran's representative specifically requested that consideration be given to extra-schedular ratings for the Veteran's service-connected right and left knee disabilities. However, after considering whether the Veteran's claims for increase for right and left knee disabilities should be referred for consideration of an extraschedular evaluation, the Board has concluded that no such referral is warranted for any of the time frames in question. As explained above, the Veteran's symptomatology from these disabilities is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peak, 22 Vet. App. 111 (2008). ORDER Entitlement to a rating in excess of 20 percent for meniscectomy, right knee, with degenerative joint disease is denied. For the period prior to September 21, 2010, entitlement to a rating in excess of 10 percent for a left knee disability, diagnosed as osteoarthritis, is denied. For the period from September 21, 2010, entitlement to a rating in excess of 10 percent, to 20 percent, but no more, for a left knee disability, diagnosed as osteoarthritis, is granted subject to the regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs