Citation Nr: 1305891 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 09-15 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for chondromalacia of the right knee. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from May 1999 to August 2006, and also had over one year of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Baltimore, Maryland, in which the RO granted service connection for a meniscal tear of the right knee with chondromalacia and assigned a noncompensable rating, effective from August 16, 2006. In August 2007, the Veteran filed a notice of disagreement (NOD), disagreeing with the rating assigned to his service-connected right knee disability. See Fenderson v. West, 12 Vet. App. 119 (1999). By a March 2009 rating action, the RO recharacterized the Veteran's service-connected right knee disability as chondromalacia of the right knee and increased the disability rating from noncompensable to 10 percent disabling, effective from August 16, 2006. A statement of the case (SOC) was issued in March 2009, and the Veteran submitted a substantive appeal (VA Form 9) in April 2009. The Veteran moved to Georgia during the pendency of this appeal, and accordingly, original jurisdiction over this matter has been transferred to the RO in Atlanta, Georgia. In March 2011, December 2011, and June 2012, the Board remanded this case for additional development. The purposes of these remands have been met and the case is ready for appellate consideration. FINDINGS OF FACT 1. The Veteran's service-connected chondromalacia of the right knee has resulted in painful motion. Functional loss has equated to flexion of the right knee to no worse than 62 degrees (with a one-time exception of flexion to 20 degrees in May 2012), with extension to no worse than zero degrees. 2. The Veteran's service-connected chondromalacia of the right knee has resulted in slight instability, effective from August 15, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for chondromalacia of the right knee have not been met, based upon limitation of motion. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5014, 5260, 5261 (2012). 2. The criteria for a disability rating of 10 percent, and not higher, for instability of the right knee have been met, effective from August 15, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letter dated in June 2006 that was sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which 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 Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in June 2006 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the June 2006 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the September 2006 decision that is the subject of this appeal in its June 2006 letter. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in June 2006), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. However, this decision was recently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Also, since the claim on appeal is a downstream issue from that of service connection, Vazquez notice was never required. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). The Board finds that the June 2006 letter substantially satisfies the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Veteran's pertinent medical records, including his service treatment records and VA treatment 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. The Board also notes substantial compliance with the remand directives in its previous remands in March 2011, December 2011, and June 2012. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in its March 2011 remand, the Board directed the RO to afford the Veteran with a VA examination in order to determine the current severity of his service-connected right knee disability. Pursuant to the remand, the Veteran underwent a VA examination in April 2011. In the December 2011 remand, the Board directed the RO to obtain the Veteran's VA treatment records for his right knee since April 2011, to specifically include the treatment record dated on July 29, 2011, from Dr. Le Vien, and the treatment record dated on August 15, 2011, from Physical Therapist Elizabeth Allen. If deemed warranted after review of any additional treatment records, the RO was to afford the Veteran with a new VA examination. Subsequently, the RO received the VA Medical Center (VAMC) treatment records dated on July 29, 2011 and August 15, 2011, from Dr. Le Vien and Physical Therapist Elizabeth Allen, respectively. In addition, although a VA examination was scheduled, it was rescheduled because the Veteran had previously filed complaints against the physician who was supposed to conduct the examination. However, the rescheduled examination also did not take place because when the Veteran presented for the examination, the magnetic resonance imaging (MRI) request was for the wrong (left) knee. The examination was cancelled due to this error. Thus, in June 2012, the Board remanded this case again so that the Veteran could undergo another examination for his right knee disability. Pursuant to the remand, the Veteran underwent a VA examination in June 2012. In the examination report, it was noted that the Veteran underwent MRIs in April 2011 and March 2012 which were reported to show minimal degenerative joint disease of the right knee. In light of the above, the Board finds that the RO has complied with the instructions from the Board's March 2011, December 2011, and June 2012 remands. The RO obtained the requested VAMC treatment records and also provided the Veteran with VA examinations as directed, and the VA examination reports substantially comply with the Board's remand directives as they are responsive to the questions posed by the Board. Stegall v. West, 11 Vet. App. 268 (1998). The examiners from the April 2011 and June 2012 VA examinations reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale for their findings. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. Therefore, the duty to assist has been satisfied, and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Factual Background The Veteran's service treatment records reflect that in 2003, he suffered a twisting injury during a basketball game. X-rays were reported to show small osteophytes in the intercondylar notch and patellofemoral joint. No acute fracture was seen and there was no evidence of knee effusion. There was focal cortical thickening involving the posteromedial proximal tibia which was non-specific and may have been due to stress-related changes. A bone scan which was performed in June 2003 showed stress-related changes of the right knee. A recommendation was made to have a correlation with an MRI. In July 2003, the Veteran had a MRI taken of his right knee. At that time, it was noted that he was status-post injury to the right knee with a suspect meniscal injury. The MRI was interpreted as showing the following: (1) no evidence of a medial meniscal tear, (2) mild chondromalacia at the weightbearing surface of the lateral femoral condyle and involving the adjacent tibial plateau, and (3) small joint effusion. The records also include a letter from a private physician, E.L.B., M.D., dated in October 2003. In the letter, Dr. B. stated that the Veteran's right knee showed a nondisplaced tear of the anterior horn of the lateral meniscus. According to Dr. B., the clinical symptoms were not markedly significant at that time. In May 2006, the Veteran filed claims for service connection for a right knee disability and a left knee disability. A VA examination was conducted in July 2006. At that time, the examiner stated that the Veteran initially had discomfort in his right knee and was diagnosed with a meniscal tear. However, no specific surgery or treatment was given. Subsequently, the Veteran injured his left knee while playing basketball. He underwent left knee arthroscopic debridement in October 2003, and then reconstruction of the anterior cruciate ligament (ACL) of the left knee in May 2004. Upon physical examination, the Veteran walked without an assistive device with normal gait and posture. Examination of the Veteran's right knee showed no localized tenderness, swelling, deformity, or instability. Upon range of motion, extension was to 0 degrees and flexion was to 125 degrees. There was no pain on range of motion or loss of motion on repetitive maneuver. There were no medial or lateral instabilities and there was no anterior posterior drawer sign. McMurray's and Lachman's tests were negative. The Veteran had crepitation on range of motion of the right knee. The pertinent diagnoses were bilateral chondromalacia of the knees and meniscal tear of the right knee. X-rays of the knees were reported to be unremarkable and they showed no evidence of arthritic disease. In a September 2006 rating action, the RO granted service connection for a meniscal tear of the right knee with chondromalacia and assigned a noncompensable rating under Diagnostic Code 5099-5014, effective from August 16, 2006. See 38 C.F.R. § 3.400(b)(2) (the effective date of an award of service connection will be the day following the date of separation from service-if the veteran filed a claim within one year after service). The RO also granted service connection for status post reconstruction of the ACL of the left knee, to include chondromalacia. In March 2007, the Veteran underwent a VA examination that was primarily for his service-connected left knee disability. Upon physical examination, the right knee showed no signs of edema, effusion, crepitus, weakness, tenderness, redness, heat, abnormal movement, "locking," pain, subluxation or guarding of movement. Range of motion of the right knee showed that flexion was to 140 degrees and extension was to 0 degrees. On the right, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The tests for stability of the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and medial and lateral meniscus of the right knee were all within normal limits. In the Veteran's August 2007 NOD, he stated that due to his right knee disability, he was unable to kneel, squat, or crawl. He indicated that he was also unable to put his complete body weight on his knee in activities such as running, jumping, and lifting heavy objects. According to the Veteran, when he engaged in those activities, he experienced joint and knee stiffness, impaired physical mobility, numbness, and mild to moderate pain which interfered with his daily routines. In a March 2009 rating decision, the RO stated that upon a review of the Veteran's service treatment records, there was no objective evidence to support the diagnosis of a right knee meniscal tear. The objective MRI evidence failed to support that diagnosis. Thus, the Veteran's service-connected right knee disability was recharacterized as chondromalacia of the right knee. In addition, based on the evidence of record showing that the Veteran had crepitation on range of motion of the right knee, with pain on use, the RO increased the disability rating for the Veteran's service-connected right knee disability from noncompensable to 10 percent disabling under Diagnostic Code 5099-5014, effective from August 16, 2006. In the Veteran's April 2009 substantive appeal, he stated that his right knee disability greatly affected his life insofar as it caused limitation of motion which impacted his ability to interact with his daughter, exercise, and perform his activities of daily living. The Veteran also indicated that due to his right knee disability, his sleeping habits had severely changed because the discomfort caused him to lose sleep. According to the Veteran, he further had begun to experience numbness in his right knee after sitting for long periods of time. In April 2011, the Veteran underwent a VA examination. The examiner stated that he had reviewed the Veteran's claims file. According to the Veteran, he could not apply any weight bearing pressure on his right knee during running, jumping, lifting heavy objects, squatting, kneeling, and crawling. If he did those activities, he experienced right knee stiffness, numbness, and impaired physical mobility with mild to moderate pain. Environmental changes such as rain and cold also aggravated his symptoms. The Veteran indicated that when he woke up in the morning, he had numbness on the bottom of his right foot and he assumed that was related to his right knee. He stated that the pain was like "pins and needles." The Veteran reported that he had weekly flare-ups that lasted one to two days. Prolonged sitting, standing, and walking aggravated his symptoms. According to the Veteran, he used a right knee brace daily for the last 1.5 years. He noted that he also used a heating pad three times a week for about 30 minutes and that he took over-the-counter pain medications. The Veteran reported that he worked at General Dynamics at a sedentary desk job. However, he was required to walk between two buildings and go up and down three flights of stairs. The Veteran stated that he could do that but he had to move slowly. He was unable to perform work that involved running, jumping, squatting, or kneeling. In regard to the question of the amount of time lost from work during the last 12-month period due to the right knee disability, the Veteran stated less than one week. Upon physical examination, the Veteran's gait was normal. There was an abnormal shoe wear pattern on the right shoe. The examiner stated that the Veteran appeared to bear more weight on the middle and lateral right foot. The Veteran was status post a bunionectomy on the right great toe. In regard to right knee abnormalities, there was crepitation and grinding, but no clicks or snaps, instability, patellar abnormality, or meniscus abnormality. There was a small effusion but no warmth noted. The Veteran had crepitance in the right knee with flexion and extension. Extension was normal to 0 degrees times three examinations. There was no pain, stiffness, incoordination or weakness. Flexion was to 80, 70, and 62 degrees times three examinations, with soreness of 5-6/10 on pain scale. The Veteran felt pain in the knee and in the base of his right foot behind the 2nd and 3rd toes over the metatarsal heads with pressure on the right patella. There was no objective evidence of pain following repetitive motion. There was no joint ankylosis. Anterior, posterior, medial and lateral collateral ligaments were intact. McMurray's test was negative. Upon neurological evaluation of the lower extremities, deep tendon reflexes were 2+ at the ankle and patella, bilaterally. The Veteran passed the monofilament from toes to knees, bilaterally. Vibratory sense was intact to greater than 16 seconds, bilaterally. The Veteran had altered sensation to temperature (cold tuning fork) at the 2nd and 3rd metatarsal heads on the right, and a small amount of tissue swelling in that area. Muscle strength was 5/5 in both lower extremities. X-rays of the right knee were reported to be normal. An MRI of the right knee was reported to show minimal chondromalacia patella and subchondral degenerative cysts of the tibial plateau. Following the physical examination and a review of the x-ray and MRI reports, the examiner diagnosed the Veteran with right knee chondromalacia patella. In regard to the impact of the Veteran's right knee disability on his occupation, the examiner stated that there were significant effects due decreased mobility. The resulting work problem was that the Veteran was assigned different duties. In regard to the effects of the Veteran's right knee disability on his usual daily activities, the examiner stated that there were moderate effects in regard to exercise, sports, and recreation. There were mild effects with respect to traveling. There were no effects with respect to chores, shopping, feeding, bathing, dressing, toileting, and grooming. With respect to the only neurological abnormality found upon examination, which was the decreased temperature sensation at the base of the 2nd and 3rd metatarsal heads on the right foot with a small amount of tissue swelling in that area, the examiner opined that it was less likely than not that the aforementioned abnormality was related to the Veteran's service-connected right knee disability. According to the examiner, that area was innervated by L5. Since the Veteran did not have any surgical procedure on the right knee, the examiner indicated that he was unable to relate any disruption of superficial nerves in the knee area to the decreased temperature sensation on the bottom of the foot. In July 2011, the Veteran was treated for complaints of right knee pain with occasional swelling. He also stated that he had "pins and needles" in his feet. According to the Veteran, he further experienced numbness in his knees after driving for two hours. He noted that he wore a knee brace. The impression was of chondromalacia of the right knee with possible ACL tear of the right knee. The Veteran was referred to physical therapy. VAMC outpatient treatment records show that in August 2011, the Veteran complained of chronic right knee pain, swelling, stiffness, and buckling. There was mild tenderness to palpation and mild crepitus with motion. Range of motion was from 0 to 120 degrees. The examiner noted + laxity in the ACL with anterior Drawer. The Veteran's gait was mildly antalgic to the right. A hinged knee brace was ordered and the Veteran was shown exercises to perform. Additional VAMC outpatient treatment records show that in November 2011the Veteran had 2+ edema of the right knee and decreased range of motion, though range of motion findings were not reported. In December 2011, the Veteran complained of right knee pain with a lot of swelling. He had an antalgic gait and was wearing a brace. There was no effusion. Range of motion was from 0 to 90 degrees. Grade I laxity was noted in the right knee. In April 2012, the Veteran underwent an orthopedic consultation. The examiner stated that x-rays of the Veteran's right knee were reported to be normal. An MRI of both knees showed degenerative changes in the menisci, small subchondral cysts and early degenerative joint disease. According to the Veteran, his knees and feet were swollen and he had "pins and needles" in his feet. The physical examination revealed no effusion in the knees and no swelling in the feet. Range of motion showed that extension was to 0 degrees and flexion was to 90 degrees, with pain. The examiner indicated that the Veteran's symptoms were out of proportion to the objective findings. The Veteran's virtual file contains a VA outpatient treatment note dated May 21, 2012, which showed that at that time, the Veteran was treated for bilateral knee pain, right worse than left. Upon range of motion, flexion was to 20 degrees and extension was to 0 degrees. Both knees were stable. The Veteran was sent to physical therapy for range of motion exercises. Thereafter, a VA treatment record (physical therapy) dated in June 2012 showed range of motion of the right knee from 0 to 93 degrees. It was noted that the Veteran had right knee pain and guarding that appeared out of proportion with the results of imaging reports. In June 2012, the Veteran underwent a VA examination. At that time, the examiner noted that he had reviewed the Veteran's claims file. The Veteran stated that he had numbness in his right knee down to his right foot. He indicated that he also had chronic pain in his right knee and swelling. The Veteran wore a knee brace. Upon physical examination, the Veteran did not have tenderness or pain to palpation of the right knee joint. Range of motion showed that extension was to 0 degrees and flexion was to 85 degrees, with pain. The Veteran did not have additional limitation in range of motion of the right knee following repetitive-use testing. He did not have any functional loss and/or functional impairment of the right knee or lower leg. The Veteran had 5/5 muscle strength. Lachman's test was normal and the posterior drawer test was normal. There was no medial-lateral instability. There was also no evidence or history of recurrent patellar subluxation/dislocation. The examiner stated that imaging studies show that the Veteran has degenerative arthritis in his right knee. Specifically, while plain x-rays of the right knee were normal, MRIs performed in April 2011 and March 2012 showed minimal degenerative joint disease of the right knee. The menisci were normal. In response to the question of whether the Veteran's right knee disability impacted his ability to work, the examiner stated "yes." The examiner reported that the Veteran was a logistics analyst for the last six years. The Veteran's job was a desk job and he could do the work. He had to walk between two buildings and handle two flights of stairs which was sometimes a problem. The Veteran's job also required him to work on military vehicles and to climb up on them which could be a problem. Activities of daily living were "okay" and he could dress and undress himself, and handle his food and toilet. The examiner reported that the examination showed no acute inflammation in that the Veteran had no effusion or swelling in the right knee. MRI reports showed early degenerative joint disease. The MRI reports failed to show injury to the menisci. There was no subluxation or instability in the right knee. There were also no frequent episodes of locking. There was some symptomatic progression of pain. III. Pertinent Law and Regulations 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). 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, 1 Vet. App. at 589, 592. 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. Therefore, 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). IV. Analysis Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson 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 the 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). The Veteran's service-connected right knee disability is characterized as chondromalacia of the right knee. This disability is not listed on the Rating Schedule, and the RO assigned Diagnostic Code 5099 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2012). The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.71a, Diagnostic Code 5014. Under Diagnostic Code 5014, osteomalacia shall be rated based on limitation of motion of the affected part, as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5014 (2012). Arthritis due to trauma under Diagnostic Code 5010 substantiated by x-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In the absence of limitation of motion, a 10 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, 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. See 38 C.F.R. § 4.71a. 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. The current 10 percent rating is assigned under Diagnostic Codes 5003 and 5010 for painful motion of the right knee with some limitation. The Board recognizes that in the April 2011 VA examination, the Veteran's flexion was limited to 80, 70, and 62 degrees times three examinations. Thus, while flexion was limited to 62 degrees, the Board notes that such finding does not warrant a rating in excess of 10 percent since under Diagnostic Code 5260, flexion limited to 60 degrees only warrants a noncompensable rating. The Board also recognizes that according to a VAMC outpatient treatment record, in a May 2012 evaluation, flexion of the right knee was limited to 20 degrees. Under Diagnostic Code 5260, flexion limited to 30 degrees warrants a 20 percent rating and flexion limited to 15 degrees warrants a 30 percent rating. However, the evidence of record shows that just one month prior to the May 2012 evaluation, in April 2012, flexion was limited to 90 degrees. Moreover, when the Veteran underwent a VA examination one month later in June 2012, flexion was limited to 85 degrees. A VA outpatient treatment record dated in June 2012 also showed that the Veteran had flexion to 90 degrees. Thus, it appears that the limited flexion to 20 degrees was a one-time finding and that overall, the Veteran's flexion of the right knee has been limited to 62 degrees or higher. Thus, the Board finds that the isolated finding of 20 degrees of flexion in May 2012 (which was not shown just one month earlier in April 2012 or one month later in June 2012), does not warrant a rating in excess of 10 percent under DC 5260. The Board further notes that at no time during the rating period on appeal does the evidence suggest that the Veteran had extension limited to approximately 5 or 10 degrees. See 38 C.F.R. § 4.71a (Diagnostic Codes 5260, 5261). The evidence contained in the VA examination reports shows that the Veteran regularly had full extension of the right knee, to zero degrees. Thus, even with consideration of painful motion and other factors, there has not been additional decreased motion of the right knee based on the painful motion, with the one-time exception of the findings from the April 2011 VA examination when the Veteran's flexion decreased after three repetitions; such findings, however, only warranted a noncompensable rating for limited flexion. Although the evidence does show that the Veteran experiences painful motion (and other symptoms such as mildly antalgic gait to the right), it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Thus, while the Veteran does not meet the criteria for even a zero percent rating based on limitation of flexion, since there was crepitation and later, arthritis (as shown in the April 2011 and March 2012 MRI's), with limited and painful flexion, a 10 percent rating is warranted per 38 C.F.R. § 4.59. Extension of the right knee has been normal, and a separate rating for painful extension is not warranted because to assign two separate ratings based upon painful motion would be pyramiding. The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 which pertains to recurrent subluxation and lateral instability of the knee. VAMC outpatient treatment records show that in August 2011, the examiner noted + laxity in the ACL with anterior Drawer. In August 2011, a hinged knee brace was also ordered. In December 2011, grade I laxity was noted in the Veteran's right knee. In light of the foregoing, the Board finds that a separate 10 percent rating, and not higher, is warranted for right knee instability under DC 5257, effective from August 15, 2011, the date of the VA treatment note showing + laxity in the ACL with anterior Drawer. A rating in excess of 10 percent is not warranted, however, because the right knee instability has not been shown to be moderate. To the contrary, it was described as grade I in a December 2011 VA treatment note. Further, a separate rating for instability under DC 5257 is not warranted prior to August 15, 2011, because the Veteran's right knee was consistently shown to be stable prior to that time. For example, on VA examinations in July 2006 and March 2007, the Veteran's right knee showed no instability or subluxation. The tests for stability of the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and medial and lateral meniscus of the right knee were all within normal limits. Likewise, on VA examination in April 2011 there was no instability. Anterior, posterior, medial and lateral collateral ligaments were intact. Accordingly, a separate rating for instability or subluxation of the right knee under Diagnostic Code 5257 is not warranted prior to August 15, 2011. The Board has also considered whether the Veteran is entitled to a separate or higher rating for right knee ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, and/or genu recurvatum. However, because the evidence of record fails to demonstrate such symptomatology, the Veteran is not entitled to an increased or separate rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263, respectively. The Board has further considered whether the Veteran is entitled to a separate rating for a neurological disability related to the Veteran's service-connected right knee disability. Throughout this appeal, the Veteran has maintained that due to his right knee disability, he has developed numbness in his right knee and right foot. He contends that he has a neurological disability manifested by numbness that is related to his service-connected right knee disability. The only neurological abnormality that has been identified is the decreased temperature sensation at the base of the 2nd and 3rd metatarsal heads on the right foot, which was noted during the April 2011 VA examination. However, the examiner specifically opined that such abnormality was not related to the Veteran's service-connected right knee disability. According to the examiner, that area was innervated by L5. Since the Veteran did not have any surgical procedure on the right knee, the examiner indicated that he was unable to relate any disruption of superficial nerves in the knee area to the decreased temperature sensation on the bottom of the foot. The Board is aware that a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, at 1376-77. The Veteran is certainly competent to report what comes to him through his senses, to include having numbness in his right knee and foot. He does not, however, have medical expertise to diagnose an underlying disease or disability manifested by numbness. See Jandrau, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The question of whether the Veteran has a neurological disability manifested by numbness that is related to his service-connected right knee disability is a complex matter and only individuals possessing specialized training and knowledge are competent to render an opinion on such a matter. Id. The evidence does not show that the Veteran possesses medical expertise and it is not contended otherwise. Therefore, his opinion that he currently has a neurological disability manifested by numbness that is related to his service-connected right knee disability is not competent evidence. In light of the above, the Board concludes that an initial disability rating in excess of 10 percent is not warranted at any time since the initial grant of service connection for chondromalacia of the right knee under DC 5260, for limited flexion. See Fenderson, 12 Vet. App. at 125-26. Accordingly, the Board finds that there is a preponderance of evidence against the Veteran's claim for a schedular evaluation in excess of 10 percent for chondromalacia of the right knee under DC 5260. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, a separate 10 percent rating, and not higher, is warranted for instability of the right knee under DC 5257, effective from August 15, 2011. V. Extraschedular Consideration In considering the claim for a higher rating, 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 right knee disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The current 10 percent ratings are assigned based upon the Veteran's pain, limited motion, crepitus, and instability of the right knee. See 38 C.F.R. §§ 4.40, 4.45 4.59, 4.71a, Diagnostic Codes 5257, 5260; DeLuca, supra. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial disability rating in excess of 10 percent for chondromalacia of the right knee under Diagnostic Code 5260 is denied. Entitlement to a 10 percent rating, and not higher, is granted for instability of the right knee under Diagnostic Code 5257, effective from August 15, 2011. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs