Citation Nr: 1306568 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 08-25 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left knee arthritis with painful motion. 2. Entitlement to a disability rating in excess of 20 percent for status post left knee injury, including patellar tendon laceration, traumatic surgical scar, and medial ligament laxity. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran subsequently relocated and jurisdiction of his claims folder was transferred to the RO in Columbia, South Carolina, which forwarded his appeal to the Board. In December 2010, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing at the Columbia, South Carolina RO. A transcript is associated with the claims file. However, the VLJ who conducted the December 2012 hearing is no longer at the Board. The Veteran was apprised of this in September 2012 and notified that he had the option to testify at a hearing in front of another VLJ who would decide his case. 38 C.F.R. §§ 20.707, 20.717 (2012). The Veteran did not respond. Therefore, it is assumed that the Veteran does not wish to have a hearing. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a claim of entitlement to a TDIU was raised in connection with the claim for an increased rating by the Veteran's accredited representative in written argument dated in August 2010. Accordingly, the Board finds that a claim for TDIU is raised and will be considered part of the Veteran's claim for an increased rating. In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder, which were considered by the agency of original jurisdiction in the April 2012 supplemental statement of the case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. At its worst, the Veteran's left knee arthritis and painful motion resulted in limitation of motion on flexion to no more than 45 degrees. 2. The Veteran's left knee disability does not manifest more than moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee arthritis with painful motion have not been met at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. The criteria for a disability rating in excess of 20 percent for status-post left knee injury, including patellar tendon laceration, traumatic surgical scar, and medial ligament laxity have not been met at any time during the claim period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether staged ratings are warranted based on distinct facts showing changes in the severity of the disability during the period of time covered by the claim. However, the Board finds that staged ratings are not warranted in this case as the evidence does not show that higher ratings are warranted at any point in time covered by this claim. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). With any form of arthritis, painful motion is a factor to be considered. 38 C.F.R. § 4.59 (2012). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath, 1 Vet. App. 589. Degenerative arthritis is rated under Diagnostic Code 5003. 38 C.F.R. § 4.71a (2012). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2012). With any form of arthritis, painful motion is an important factor of disability. The facial expression, such as wincing on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the 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 (2012). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, the provisions regarding pyramiding do not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran seeks higher ratings for his service-connected left knee disabilities. The RO has characterized the two disabilities as left knee arthritis with painful motion, which is rated based on limitation of motion; and status-post left knee injury, including patellar tendon laceration, traumatic surgical scar and medial ligament laxity, which is evaluated based on lateral instability. The disability of arthritis, left knee with painful motion is rated as 10 percent disabling throughout the period of time covered by this claim, and the disability of status-post left knee injury, including patellar tendon laceration, traumatic surgical scar and medial ligament laxity, is rated 20 percent disabling. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2012). Flexion of the leg limited to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Extension of the leg limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). 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. The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). A separate rating may also be assigned for instability of the knee under Diagnostic Code 5257 where entitlement to separate compensable ratings is shown, which has been established in this case. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997). Under Diagnostic Code 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2012). A 10 percent rating may be awarded for the symptomatic removal of semilunar cartilage under Diagnostic code 5259. Or, a separate 20 percent rating may be awarded for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion, to the extent that there is separate compensable symptomatology. VAOPGCPREC 09-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998). Factual background In December 2006, the Veteran was seen in the emergency room for complaints of left knee pain. He reported that his knee buckled, twisted, and he ended up sitting on his foot. Since then, he has had left knee pain with weight bearing and swelling. There was mild left knee effusion and tenderness at the medial joint aspect but the knee was stable. An MRI revealed medial joint compartment with a large horizontal oblique tear of posterior horn of medial meniscus and mild non-uniform thinning of articular cartilages. There was no significant joint effusion and the ligaments were intact. In January 2007, the Veteran was seen for reports of medial sided pain and popping and giving way. There was no effusion but there was tenderness to palpation along the medial joint line, and no tenderness to palpation on the lateral joint line. He was stable as to varus/valgus and anterior/posterior drawer testing. There was pain with McMurray testing. In January 2007 the Veteran was accorded a C&P joints examination. During the examination the Veteran reported that he twisted his knee and it buckled under him, causing severe pain. He described his left medial knee pain as 4/10 at rest and as 7-10/10 with weight bearing. He indicated modest relief to 5-6/10 with Motrin. He reported that he has continued to work but took three days off work since hurting his knee. He indicated that he did not take any time off work for the knee over the past 12 months. He reported that he used a heating pad, in addition to taking Motrin, and used cushioned inserts in his shoes. He indicated that he used a knee brace since he twisted his knee. He reported pain, weakness, stiffness, intermittent swelling, instability, giving way, locking, fatigability, limited range of motion, and lack of endurance since he twisted his knee. Walking was limited since he tore the meniscus and he arranged things so he only walked a few minutes at a time. He was able to drive without problems. Physical examination revealed an antalgic gait favoring the left knee. Left knee range of motion revealed flexion from 0 to 100 degrees with an increase of baseline pain from 90 to 100 degrees. Extension was to 0 degrees. Varus/valgus testing showed a sharp increase of pain on slight valgus testing. Anterior/ posterior drawer testing was negative. McMurray testing was positive with sharp increase of pain on slight movement. DeLuca testing showed no increased limitation of range of motion, a slight increase of pain, and no lack of endurance after two repetitions. An x-ray correlated to a 2003 study of the left knee included an impression of progressive degenerative changes and osteochondrosis. The diagnosis was progressive patellofemoral degenerative joint space changes and osteochondrosis. In a December 2007 statement, the Veteran indicated that his pain and weakness has steadily increased in the years. In March 2007, the Veteran underwent a left knee arthroscopy and meniscal debridement of the medial and lateral meniscus. The procedure revealed a minor tear of the posterior horn of the lateral meniscus and a major tear of the posterior horn of the medial meniscus. In April 2007, the Veteran reported that he heard a pop in his left knee after walking for several hours. He developed increased pain in the medial joint area and swelling. An examination revealed the left knee was slightly swollen and slightly warm but not red. He had full range of motion. Later in the month, the Veteran exhibited instability and flexion to 120 degrees. An April 2007 x-ray revealed no evidence of fracture or dislocation. The impression was unremarkable. A June 2007 MRI showed chondromalacia in the lateral facet of the patella and joint effusion. The impression was a stable tear of the posterior horn of the medial meniscus. In August 2007, the Veteran continued to report mechanical symptoms of instability. He had diffuse swelling of the left knee and lateral joint line pain. He did not have medial joint line pain. His active range of motion was from 0 to 125 degrees with no complaints of pain. Manual muscle testing revealed 5/5. Lachman's testing was +2. He had negative varus/valgus instability at 0 and 30 degrees. The physician noted that a June 2007 MRI failed to show an ACL or PCL tear. The diagnosis was increased laxity to Lachman's and anterior drawer but the MRI did not reveal an ACL/PCL tear; there was diffuse degenerative changes noted throughout. An October 2007 physical therapy note revealed his range of motion and strength in his left quad and hamstrings were within normal limits. During a February 2009 Decision Review Officer (DRO) hearing, the Veteran testified that during work he walked on a cement floor all day and by lunch time, he would go out and put on a Cryo Cuff (ice pack) and be limping by the end of the day. He indicated that his knee was getting weaker and he would feel destabilization after sitting in a chair or stepping out of his car. He also testified that he still felt instability in his knee that was very painful. He stated that he had been feeling weakness and instability that has gradually gotten worse and worse. He said he feels a lot of pain and rated his instability as moderate and severe. When discussing range of motion, the Veteran indicated that he could achieve 90 degrees of flexion and about 75 degrees without force. He indicated that cortisone shots do not help. He also testified that he planned to retire in a year and a half. In April 2009 the Veteran was accorded another C&P joints examination. During the examination the Veteran reported constant pain in his left knee that he described as 3/10 but as 10/10 with weight bearing activities. He felt that his left knee was weaker and would swell intermittently after walking. He denied any heat, redness, and locking. He reported that he felt his left knee was unstable and reported that it gives out at least four times a week. He reported that he has fallen in the past and indicated fatigability and lack of endurance. The Veteran denied any additional limitation of motion or functional impairment during a flare-up. The Veteran indicated that he wore a knee brace and used a walker. The Veteran also reported that he lost three to four days from work in the past year. Physical examination revealed an upright and antalgic gait with no functional limitations on standing and walking. There was lateral shoe wear pattern to indicate abnormal weight bearing. There was no evidence of edema, effusion, instability, weakness, redness, or abnormal movement but there was guarding on movement. There was no varus/valgus deformity. Palpation revealed crepitus and point tenderness of the medial condyle and medial femoral condyle. Range of motion showed flexion from 0 to 130 degrees with pain from 100 to 130 degrees and extension at 0 degrees (full extension). His medial and lateral collateral ligaments were normal with no motion; he had negative Lachman's test and negative anterior and posterior drawer test. He also had negative McMurray's test. The Veteran's knee was painful on motion and the range of motion or joint function was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance following repetitive use. There was no estimated additional decrease in range of motion with flare-ups. The diagnosis was degenerative joint disease of the left knee and medial meniscus injury. The examiner indicated that the Veteran had mild to moderate functional impairment as a result of decreased range of motion. The claims file was not available for the 2007 and 2009 examiners to review but this does not render the examinations inadequate as the examiners conducted thorough physical examinations of the Veteran, reported the Veteran's symptoms, and as sufficient information was provided such that the Board can render an informed determination. In May 2009, the Veteran complained of left knee pain. An x-ray revealed stable chondrocalcinosis with no evidence of fracture, dislocation, or focal bone lesion. He described his pain as 8/10. Active range of motion revealed flexion from 0 to 132 degrees and extension was 0. Strength was assessed as 5/5, bilaterally in the lower extremities except the Veteran exhibited 4- on extension and 4+ on flexion with pain noted with both. No atrophy was noted. He was tender to palpation at the medial joint line. He exhibited a decreased stance time on the left side and had a mildly antalgic gait. He was positive for patella grind, valgus stress, and McMurray testing but was negative on anterior drawer. The assessment was decreased left knee range of motion, decreased bilateral lower extremities strength, positive tenderness to palpation along the medial joint line and infrapatella areas, and his positive tests on grind, McMurray, valgus stress tests led to decreased function including walking and prolonged sitting. His symptoms were consistent with a possible left meniscus tear/osteoarthritis. In June 2009, the Veteran reported chronic left knee pain with feelings of instability and hyperextension. Physical examination showed no ligament instability but a new brace was dispensed. Another June 2009 outpatient note diagnosed the Veteran with bilateral osteoarthritis. He had some mild tenderness over the patellar ligament. There was no effusion noted, no increased warmth, and his stability was intact. In July 2009, the Veteran reported continued pain with prolonged standing or walking. He had tenderness to palpation along the medial joint line but since his knee "popped," he has had lateral knee soreness. Private medical records include an August 2009 report of his left knee giving way. In a February 2010 statement, the Veteran reported that his knee has been getting weaker with increasing swelling and pain. He also indicated that the pain and swelling resulted in him taking an early retirement when it was offered to him. During his December 2010 Board hearing, the Veteran testified that he was undergoing physical therapy for his knee. He indicated that he retired in October 2009. He indicated he could bend his knee as long as he concentrated on doing so; he reported that it was painful to bend his knee. He also indicated that he wore a metal hinged knee brace. He testified that he experienced popping or cracking of the knee joints and could feel as if his bones were rubbing together and heating up. He testified that his knee has given out on him and he has fallen due to this. He indicated that his knee gives out two or three times a day. The Veteran stated that while he was a truck driver, he uses a compression ice pack. He also indicated that he missed approximately three weeks of work in the last year due to his left knee. He testified that he took an early retirement when it was offered because of his knee. A coworker's statement indicated that the Veteran favored his left knee and complained about severe pain in the knee. He also reported that the Veteran needed to wear a knee brace because sometimes his knee would give out. A February 2011 x-ray revealed bilateral chondrocalcinosis compatible with calcium pyrophosphate dyhydrate deposition disease (CPPD). In May 2011 the Veteran was accorded a C&P examination. During the examination the Veteran reported daily pain in his left knee. He indicated that the pain is all day long and was constant; he rated the pain as 8/10/ and described it as stabling. He denied any flares of the pain and denied locking. He denied any physician directed bed rest/incapacitating episodes in the past year due to his left knee. He was unable to walk more than 1/4 mile and unable to run at all. He was also unable to stand in one position more than one to two minutes long and he avoided climbing stairs. He reported that he had to stop driving his jeep and motorcycle because of the pain in his left knee. The Veteran reported that he was still working full time in his own business and indicated that he missed zero days of work this past year due to his knee. He did report that he missed 12 weeks of work in 2009 from the post office when he was working there full time. He had a 4 cm. by 23 cm. scar along his left knee. It was not tender to palpation, not adhered to the underlying tissue, and was neither elevated nor depressed. It was smooth, stable, and superficial. There was no inflammation, edema, or keloid formation; it was hypopigmented and there was no limitation of function caused by the scar. Physical examination revealed a limp gait and the Veteran was using braces on his knees with no use of assistive devices. He had 5/5 strength in his lower extremities, bilaterally and his reflexes were 2+ at the knees. He had no erythema, edema, or tactile crepitus of the knees bilaterally. There was no ankylosis. He was also negative for Lachman's, McMurray's, and the Drawer test. There was no instability of the MCL or LCL bilaterally. His range of motion of the left knee was flexion from 0 to 45 degrees with pain and from 0 to 45 degrees upon repetition; there was no decrease with repetitive movement. There was no DeLuca criteria and the Veteran was able to extend to 0 degrees bilaterally with pain upon repetition; there was no decrease with repetitive movement and no DeLuca criteria shown. The examiner indicated there was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. The impression was left knee chondrocalcinosis compatible with CPPD. The examiner noted that the Veteran denied flare-ups. He also noted there was no instability or subluxation of the left knee present upon examination. The Veteran had further denied any locking nor was there any evidence of locking upon physical examination. The Board notes that the Veteran is assigned a 10 percent disability rating under Diagnostic Code 5010 for arthritis. The Board also notes that the evidence showed that the Veteran's limitation of motion was noncompensable under Diagnostic Codes 5260 and 5261 prior to May 5, 2011. During the May 2011 examination limitation of flexion to 45 degrees was shown. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent at any time covered by this claim under Diagnostic Code 5010. In this regard, the Veteran is already in receipt of a 10 percent evaluation for limitation of motion, therefore, the criteria pertaining to X-ray involvement are inapplicable as they cannot be combined with ratings based on limitation of motion. Regarding limitation of motion on flexion, prior to May 5, 2011, the Veteran's flexion ranged from 100 to 132 degrees, with pain from 90 to 100 degrees on examination in January 2007, and from 100 to 130 degrees on examination in April 2009. There was no evidence of more or less movement than normal, weakened movement, excess fatigability, or incoordination, to include on use nor was there any additional limitation of motion due to pain. Deluca, supra. Therefore, the Board finds that a rating in excess of 10 percent is not warranted pursuant to Diagnostic Code 5260. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint). On May 5, 2011, the Veteran's limitation of motion did meet the criteria for a 10 percent rating under Diagnostic Code 5260. However, the Board finds that a rating in excess of 10 percent is not warranted for any period of time covered by this claim. The Veteran reported painful motion, swelling, fatigability, and lack of endurance. See August 2003 VA examination, January 2007 VA examination, March 2007 VA treatment record, August 2007 VA treatment record, and April 2009 VA examination. However, at no point in time does the Veteran's limitation of motion on flexion more nearly approximate 30 degrees. In the May 2011 VA examination report, the examiner found that the Veteran's range of motion of the left knee was flexion from 0 to 45 degrees. At the time of examination, the Veteran reported pain from 0 to 45 degrees but did not exhibit a decrease with repetitive movement. Further, the examiner indicated there was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. In addition, the Veteran denied flare-ups. Thus, the Veteran's limitation of motion to 45 degrees, warrants a 10 percent rating, but not higher. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As previously stated, 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. The Veteran is not entitled to a separate rating under Diagnostic Code 5261 as he was consistently able to extend to 0 degrees. See January 2007 VA examination and April 2007 VA treatment record showing full range of motion, April 2009 VA examination, May 2009 VA treatment record, and May 2011 VA examination. Thus, for the reasons stated above, the Board finds that a rating in excess of 10 percent is not warranted for left knee arthritis with painful motion for any period of time that is covered by this claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App 49 (1990). As muscle strength was slightly decreased in May 2009, the Board has also considered whether a separate or higher evaluation is warranted pursuant to the diagnostic criteria pertaining to muscle injuries. Muscle injuries are evaluated under diagnostic codes set forth in 38 C.F.R. § 4.73 (2012). Flexion of the knee and outward and inward rotation of the flexed knee is addressed by Muscle Group XIII. See 38 C.F.R. § 4.73 (Diagnostic Code 5313). Muscle Group XIII encompasses the extension of the hip and flexion of the knee. The functions of these muscles include outward and inward rotation of the flexed knee, acting with rectus femoris and Sartorius synchronizing simultaneous flexion of the hip and knee and extension of the hip and knee by belt-over-pulley action at the knee joint. Id. Under Diagnostic Code 5313, slight muscle damage warrants a noncompensable rating. The next higher, 10 percent rating is assigned for moderate muscle damage. A 30 percent rating is assigned to moderately severe muscle damage and a 40 percent rating is assigned to severe muscle damage. Extension of the knee and simultaneous flexion of the hip and flexion of the knee is addressed by Muscle Group XIV. See 38 C.F.R. § 4.73 (Diagnostic Code 5314). Under Diagnostic Code 5314, slight muscle damage warrants a noncompensable rating. The next higher, 10 percent rating is assigned for moderate muscle damage. A 30 percent rating is assigned to moderately severe muscle damage and a 40 percent rating is assigned to severe muscle damage. Diagnostic Code 5315 also contemplates flexion of the knee and provides a noncompensable rating for slight muscle damage, a 10 percent evaluation for moderate disability, a 20 percent rating fro moderately severe disability and a 30 percent rating for severe disability. Having carefully reviewed the evidence, the Board concludes that a separate rating is not warranted as the criteria set forth in Diagnostic Codes 5260 and 5261 already contemplate limitation of motion on flexion and extension. To assign a separate rating would constitute impermissible pyramiding as the same manifestations are contemplated by the applicable criteria for knee disabilities and muscle disabilities affecting motion of the knee. Also, the cardinal signs and symptoms of muscle disability including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement pursuant to 38 C.F.R. § 4.56(c)(2012) are also contemplated under Codes 5260 and 5261, limitation of motion on flexion and extension pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). Moreover, in light of the minimal loss of strength shown on one examination to 4- on extension and 4+ on flexion, at worst moderate disability is shown and a higher evaluation thus is not available under the muscle codes. See 38 C.F.R. § 4.56(d) (2012) (moderate disability is manifested by some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side). The Board also finds that the preponderance of the evidence is against a finding that a rating in excess of 20 percent is warranted for the Veteran's laxity. The evidence does not support a finding that the Veteran had more than moderate instability in his left knee. The Veteran reported that his left knee gives way and reported a history of falls. However, in December 2006 and January 2007, he was stable to varus/valgus stress and on anterior and posterior drawer testing. Upon VA examination in January 2007, he had a sharp increase of pain on slight valgus testing. On examination in April 2009, no instability was found. In May 2009, a positive valgus stress test was noted, however, on examination in June 2009 no instability was found. The May 2011 VA examination revealed no instability of the MCL or LCL bilaterally and the examiner determined there was no instability or subluxation of the left knee present upon examination. The Veteran competently, credibly, and probatively reports that he experiences falls and that he feels he has instability that is moderate to severe in nature. However, the evidence as a whole does not show that the criteria for a higher evaluation are met or approximated. The Board finds that the medical evidence is most probative as to whether lateral instability is shown and the severity thereof as specific testing was accomplished to test for instability. On multiple examinations, no instability was found. In May 2009, a positive valgus stress test was noted, but one month later no instability was shown. In May 2011, the VA examiner did a thorough examination to determine whether there was instability of the left knee and found none. On most occasions, medical practitioners found no evidence of instability. However, there was evidence of a sharp increase of pain on slight valgus testing in January 2007 and a positive valgus stress test in May 2009. In light thereof and upon considering the Veteran's reports of falls, the Board finds that the criteria for the currently assigned evaluation of 20 percent are more nearly approximated. However, as the majority of practitioners did not find evidence of instability, the Board finds that the criteria for severe instability are not approximated. The numerous clinical evaluations which found no evidence of instability outweigh the Veteran's reports that he consistently experiences falls which he attributes to instability. As instability is not shown on the majority of evaluations that have been completed during the course of this appeal, the Veteran's reports of instability, which reportedly can be severe, throughout the claim period are outweighed by the more probative medical evidence. Accordingly, the Veteran's instability of the right knee does not more nearly approximate a 30 percent disability rating under Diagnostic Code 5257 at any time covered by this claim as instability, let alone severe instability, is not shown on most of the evaluations conducted during the claim period. Additionally, for the entire claim period, as the evidence of record fails to demonstrate ankylosis, nonunion or malunion of the tibia or fibular, or genu recurvatum; the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively. The medical evidence shows that the Veteran had tears of oblique tear of posterior horn of medial meniscus and mild non-uniform thinning of articular cartilages in December 2006. In March 2007, the Veteran underwent left knee arthroscopy and meniscal debridement of the medial and lateral meniscus which revealed a minor tear of the posterior horn of the lateral meniscus and a major tear of the posterior horn of the medial meniscus. A June 2007 MRI revealed a stable tear of the posterior horn of the medial meniscus. In May 2009, a physician indicated that the Veteran's symptoms were consistent with a possible left meniscus tear/osteoarthritis. The Board will thus also consider the provisions of Diagnostic Code 5258 and 5259. Diagnostic Code 5258 provides a 20 percent rating for dislocated cartilage with frequent episodes of "locking," pain, and effusion in to the joint and Diagnostic Code 5259 provides ratings for symptomatic removal of the semilunar cartilage. The Veteran denied locking during the April 2009 VA examination, and during the May 2011 VA examination. However, in January 2007, he reported that he did experience locking. In sum, while the Veteran has reported pain and intermittent swelling, the evidence does not show frequent episodes of locking as the Veteran only reported locking on one occasion. While there is evidence of pain and effusion, these symptoms, which ultimately result in limitation of motion, are contemplated by the criteria under which limitation of motion is rated. See Diagnostic Codes 5210 and 5260. Accordingly, the Veteran's symptomatology is contemplated by the currently assigned criteria for limitation of motion as well as the criteria pertaining to instability and to assign a separate rating pursuant to Codes 5258 or 5259 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (2012). In the May 2011 VA examination report, the examiner described the service-connected scar as 4 cm. by 23 cm. that was not tender to palpation, not adhered to the underlying tissue, and is neither elevated nor depressed. It was smooth, stable, and superficial. There was no inflammation, edema, or keloid formation; it was hypopigmented and there was no limitation of function caused by the scar. In sum, the scar is not deep and does not cause limited motion, it is not 929 square centimeters or greater, and it is not painful or unstable. Therefore, the Board finds that the evidence does not show entitlement to a separate compensable rating for symptoms associated with the residual scar. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2002). The diagnostic criteria pertaining to scars that were applicable prior to 2008 are for consideration as the Veteran filed his claim for an increased rating in 2006. The Board has considered the lay statements, regarding his symptoms and the severity thereof, including that of a friend which indicates he has severe pain in the knee and wears a brace because his knee gives out. However, while these statements are competent, credible, and probative, the entirety of the evidence as discussed above does not show that the criteria for a rating in excess of 20 percent for laxity or a rating in excess of 10 percent for arthritis/limitation of motion are met or approximated. The issue of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left knee arthritis with painful motion and instability with the established criteria found in the rating schedule. The Board finds that the Veteran's left knee arthritis with painful motion and instability is fully addressed by the rating criteria under which such disabilities are rated. The Veteran's symptoms, include weakness, swelling and pain, which result in limitation of motion and giving way are contemplated by the currently assigned ratings. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disabilities. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). Notice which informs the veteran of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Letters from the RO dated in June 2008 and March 2009 apprised the Veteran of the information and evidence necessary to substantiate his claim for an increased rating for his left knee. He was also advised of the evidence that VA would seek to provide and of the information and evidence that he was expected to provide. See 38 C.F.R. § 3.159(b)(1). He was also advised of how disability ratings and effective dates are assigned. The Board notes that the Veteran was not accorded a notice letter prior to the January 2007 rating decision that is on appeal and the rating decision stemmed from a re-evaluation of his service-connected left knee disorder. The Veteran was notified of this re-evaluation in a December 2006 letter. The Board does not find that the Veteran is prejudiced because he was notified of information and evidence necessary to substantiate his claim and the claim was thereafter readjudicated by way of a supplemental statement of the case. The Veteran was also provided an opportunity to set forth his contentions during the hearing before a VLJ in December 2010. In Bryant v. Shinseki, the U. S. Court of Appeals for Veterans Claims (The Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the December 2010 hearing, the VLJ enumerated the issues on appeal. Information was obtained regarding treatment for his disability and the severity of the disability and functional impairment resulting therefrom. The RO hearing officer also elicited testimony concerning the level of severity of the disability and functional impairment resulting therefrom. The Veteran has not asserted that there was prejudice with respect to the conduct of either hearing. In March 2011, the Board remanded the case for further development. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A March 2011 letter from the RO requested that he identify any additional private medical records and the Veteran replied that all information had been submitted. Additional VA treatment records were associated with the claims folder and a VA examination was provided on remand. The VA examiner reviewed the claims folder and conducted an examination, recorded range of motion measurements (which considered the degree of severity of pain), and provided sufficient information such that the Board's determination is an informed one. Accordingly, the examination was adequate. In sum, the information requested by the Board was provided and there was substantial compliance with the Board's remand instructions. Taking all of the above into consideration, the Board concludes that VA has satisfied both duties to notify and assist. Accordingly, the Board concludes that a decision on the merits at this time does not violate the VCAA nor prejudice the Veteran. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for left knee arthritis with painful motion is denied. Entitlement to a disability rating in excess of 20 percent for status post left knee injury, including patellar tendon laceration, traumatic surgical scar, and medial ligament laxity is denied. REMAND The Board has found that a claim for TDIU is part of this appeal. The Veteran has not received notice regarding that claim. In addition, he should be asked to complete a TDIU claim form so that he can provide information concerning his employment, education, training, and other relevant factors. A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Disabilities arising from a common etiology or single accident will be considered one disability for that purpose. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). When the percentages requirement is met, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In exceptional circumstances, where the veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Marginal employment shall not be considered substantially gainful employment and shall be deemed to exist when the veteran's annual income does not exceed the amount established by the Department of Commerce, Bureau of Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (2012). Since the claims file is being returned it should also be updated to include recent VA treatment records dating from January 21, 2011. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, a VA examination should be conducted to assess whether the Veteran is unable to obtain and retain substantially gainful employment due to his service-connected disability. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following action: 1. Provide the Veteran with notice as to how to substantiate his claim for TDIU and request that the Veteran complete a TDIU claim form. 2. Obtain VA medical records dating from January 21, 2011. 3. After completion of the above, and if the RO/AMC finds the Veteran was not engaged in substantially gainful employment throughout the claim period, schedule the Veteran for a VA medical examination. The examiner should identify the limitations resulting from the Veteran's service-connected left knee disabilities and provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the service-connected left knee disabilities render him unable to obtain and maintain any form of substantially gainful employment consistent with his education and industrial background, but not taking into consideration his age or other non service-connected disabilities. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached. 4. Then, after ensuring the VA examination report is adequate, undertake any other development action deemed warranted and readjudicate the claim, taking into consideration of whether referral of the claim for extraschedular consideration is warranted pursuant to 38 C.F.R. § 4.16(b) (2012). If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs