Citation Nr: 1306759 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 05-05 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for a lateral meniscus tear of the left knee, postoperative residuals manifested by instability or subluxation, evaluated as 10 percent disabling prior to August 4, 2005, and as 20 percent disabling thereafter. 2. Entitlement to an initial rating in excess of 10 percent for a lateral meniscus tear of the left knee, postoperative residuals manifested by limited extension, effective from February 8, 2008. 3. Entitlement to an initial rating in excess of 10 percent for lateral meniscus tear of the left knee, post operative residuals manifested by limited flexion, effective from July 3, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from June 1987 to December 1991. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied a rating in excess of 10 percent for the Veteran's left knee disability. In an August 2005 rating decision, the RO awarded a 20 percent rating for his service-connected left knee disability, effective from August 4, 2005. In November 2006, the Veteran testified during a personal hearing at the RO and, in May 2008, he testified during a hearing at the RO before the undersigned Veterans Law Judge. Transcripts of the hearings are of record. In February 2009 and July 2010, the Board remanded the Veteran's case to the RO for further development. In a November 2011 rating decision, the Appeals Management Center (AMC) awarded separate 10 percent ratings for limitation of left knee flexion and extension, effective July 3, 2008 and February 8, 2008, respectively. In March 2012, the Board again remanded the Veteran's case to the RO for further development. FINDINGS OF FACT 1. Prior to August 4, 2005, the Veteran's left knee disability was manifested by no more than mild subluxation or instability; and since that date it has been manifested by no more than moderate recurrent subluxation or instability of the left knee;. 2. Prior to February 8, 2008, there was no limitation of left knee extension; from February 8, 2008, to July 2, 2008 left knee extension was limited to 15 degrees; since July 3, 2008 there has been noncompensable limitation of extension. 3. Prior to July 3, 2008, there was no limitation of left knee flexion, since July 3, 2008, left knee flexion has been limited to at most 45 degrees. 4. The Veteran failed to report for a VA examination, in 2012, in conjunction with his claim for an increased rating for his left knee disabilities without good cause; the examination was necessary because the earlier evidence did not show that his disability approximated the criteria for an increased rating. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to August 4, 2005, and in excess of 20 percent thereafter, for a lateral meniscus tear of the left knee, postoperative residuals, manifested by instability, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2012). 2. The schedular criteria for an initial rating of 20 percent for lateral meniscus tear of the left knee, postoperative residuals with limited extension were met from February 8, to July 2, 2008. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, DC 5261 (2012). 3. The criteria for a compensable rating for limitation of flexion of the left knee were not met prior to July 3, 2008; and the criteria for a rating in excess of 10 percent for limitation of flexion have not been met since July 3, 2008. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.71a, DC 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In February 2004, July 2007, January 2008, March 2009, and April 2012 letters, the agency of original jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b). The AOJ notified the Veteran of information and evidence necessary to substantiate his claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In a March 2006 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Veteran's hearing, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that service-connected disability worsened in severity would be helpful in establishing the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012); they have not identified any prejudice in the conduct of the Board hearing. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file shows VA treatment records, dated from September 2007 to October 2012, also considered by the Board in the claims on appeal. Further, in February 2004, May 2006, on February 8th and July 3rd, 2008, and in October 2010, the Veteran was afforded VA examinations in connection with his claims on appeal, the reports of which are of record. The February 2009 remand was to insure that a supplemental statement of the case was issued to consider new evidence. That development was completed. The July 2010 remand was for efforts to obtain private treatment records and afford the Veteran a new examination. The treatment records were subsequently obtained and the Veteran was afforded a new examination. The March 2012 remand was to obtain records of treatment reported at that most recent examination and because the examination report did not contain findings in accord with the then recent decision of the Court of Appeals for Veterans Claims (Court) in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Appeals Management Center obtained the most recent VA treatment records. The VA examination was scheduled in accordance with the Board's remand instructions, but the Veteran failed without explanation to report. The Board presumes that the Veteran was properly notified of the scheduled examination. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). As discussed in greater detail below, the provisions of 38 C.F.R. § 3.655(a), (b) mandate that, when a claimant fails, without good cause, to report for a necessary VA examination scheduled in conjunction with a claim for increased rating, the claim will be denied. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The evidence includes the Veteran's service treatment records, VA and non-VA medical records and examination reports, dated from 2002 to 2012, and his written statements and oral testimony in support of his claims. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation 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). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected left knee disabilities are deemed competent evidence. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria in order to assess their credibility. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). VA's policy is treated actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation applies to any service connected joint disability, not just arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2011). The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The record reflects that the Veteran's service-connected knee disability is currently assigned a 10 percent rating prior to August 4, 2005 and 20 percent thereafter under Diagnostic Code 5257 (for instability) and separate 10 percent ratings under DCs 5261 and 5260 for limited extension and flexion effective from February 8th and July 3rd 2008, respectively. 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 however, 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 groups 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Codes 5258 and 5259 provide rating criteria for dislocated and removal of semilunar cartilage, respectively. See 38 C.F.R. § 4.71a, DCs 5258 and 5259 (2012). Diagnostic Code 5258 provides that a 20 percent rating will be assigned when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A 20 percent rating is the highest disability rating provided by DC 5258. Under 38 C.F.R. § 4.71a, DC 5260, if flexion of the knee is limited to 45 degrees, a 10 percent rating is assigned. If flexion of the knee is limited to 30 degrees, a 20 percent rating is in order, and a 30 percent rating is warranted for limitation to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, if extension of the knee is limited to 10 degrees, a 10 percent rating is assigned. If extension of the knee is limited to 15 degrees, a 20 percent rating is in order. Id. A 30 percent rating is warranted for limitation to 20 degrees, a 40 percent rating warranted for limitation to 30 degrees, and a 50 percent rating warranted for limitation to 45 degrees. Id. In a precedent opinion the VA General Counsel held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. In a separate precedent opinion, the VA General Counsel held that separate compensable ratings may also be assigned where the service-connected disability includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). In this regard, under DC 5257, impairment of the knee, manifested by recurrent subluxation or lateral instability will be rated 20 percent disabling when moderate and 30 percent when severe. 38 C.F.R. § 4.71a, DC 5257. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). In an August 1993 rating decision, the RO granted service connection for post operative residuals of a lateral meniscus tear of the left knee and assigned a 10 percent disability rating under DC 5257. VA and non-VA medical records and examination reports, dated from 2002 to 2012, include the Veteran's complaints of left knee pain, swelling, and instability. The available records show that he underwent left knee surgeries in May 2004, December 2006, and March 2009. A March 2002 VA examination report indicates that the Veteran worked as a security officer. He complained that his knee gave out and he occasionally fell. His knee locked and lost motion. The examiner was confused by the history provided by the Veteran as it was at odds with the recorded history. The Veteran said his 1991 operation (in service) was his last and he had four previous operations: three arthroscopic operations and two open operations, although the VA examiner found no clinical evidence of any major incisions when visualizing the left knee. The examiner noted that the service medical board review did not refer to surgeries in service until the 1991 procedure. Objectively, the Veteran's left knee was not swollen and range of motion was from 0 to 135 degrees. There was no McMurray's sign and no unusual crepitus. The collateral and cruciate ligaments were stable and muscular development appeared comparable to the right extremity. X-rays taken at the time were interpreted as normal. A June 2002 record from J.D., D.O., indicates that the Veteran complained of buckling and giving of his knee with intermittent locking. Objectively, the Veteran had limited motion with mild effusion. He had point specific medial joint line pain and condylar pain with a painful and positive McMurray's sign. Lachman's test was negative as were drawer signs. The impression was probable osteochondral lesion versus recurrent meniscal tear. A diagnostic arthroscopy was recommended. Private medical records, dated form February 2004 to January 2005, indicate that the Veteran had a tear of left medial and lateral meniscus. He complained of pain and instability. Results of a magnetic resonance image (MRI) performed in February 2004 showed a horizontal tear of the medial meniscus body. In May 2004, the Veteran underwent a partial lateral meniscectomy performed by A.L.O., M.D. When seen one week after the procedure, the Veteran had 1+ effusion and range of knee motion from 0 to 90 degrees. In June 2004, he had full range of knee motion and 1+ effusion. When seen in September 2004, the Veteran said his knee felt unstable and internal derangement was diagnosed. When examined by Dr. A.L.O. in October 2004, the Veteran walked with a normal gait and his knee was stable to varus and valgus stress testing. There was negative Lachman's test, negative anterior and posterior drawer signs, and no posterolateral instability. There was medial joint line tenderness and range of knee motion was normal. In January 2005, Dr. O. diagnosed osteoarthritis of the left knee. According to a January 2005 record from another private physician, the Veteran had full range of knee motion with tenderness in the medial joint line area and 1+ effusion. An August 4, 2005 VA outpatient record indicates that the Veteran had moderate subluxation of the left knee with no evidence of acute effusion. An August 2005 VA outpatient orthopedic surgery clinic record shows that the Veteran was evaluated for left knee pain with occasional locking. Objectively, there was increased medial tracking of the patella and patella grinding with flexion and extension and medial joint line tenderness. There was no varus/valgus instability and results of anterior/posterior drawer signs were negative as was McMurray's test. There was full range of knee motion. In December 2005, objective findings were considered essentially unchanged, although the Veteran continued to have some lateral instability in his left knee and a small amount of anterior/posterior subluxation. VA medical records, dated in March 2006, reflect that the Veteran had left quad/hamstring weakness due to left knee pain. Results of a MRI of the left knee performed at the time showed tearing of the body of the lateral meniscus with grade 3 chondromalacia of the lateral compartment and mild joint effusion. An April 2006 VA orthopedic surgery record reveals that the Veteran's range of left knee motion was from 0 to 120 degrees with evidence of some medial joint line tenderness on the left side. The diagnosis was left knee internal derangement with bilateral meniscus tear. An arthroscopy was planned. Results of a MRI of the Veteran's left knee dated at that time showed a tear of the posterior limb of the lateral meniscus with early degenerative changes of the medial meniscus and a small amount of fluid in the joint space. In May 2006, the Veteran underwent VA examination. The Veteran reported constant left knee pain and swelling that worsened with squatting, walking, sitting, and using stairs. He wore a soft brace and took ibuprofen for pain. The Veteran was a police officer at the Dallas VA and lost an average of five working days per month, and 30 days in the past year due to knee disability. His knee had no effect on his activities of daily living but he was unable to squat long or carry heavy weights and was unable to participate in recreational activities such as jogging, running, or tennis but rode a bicycle. Objectively, there was mild tenderness of the medial joint line and lateral aspect the patella and guarding of movements. Range of motion of the left knee was flexion was from 0 to 140 degrees with pain at the end of flexion, and normal stability and varus and valgus stability, and negative McMurray's, Lachman's, and drawer signs. There was no additional limitation of motion due to pain, fatigue, weakness, lack of endurance or flare-ups. There was guarding of knee movements. The left knee was stable with increased medial tracking of the patella. In August 2006, the Veteran was evaluated in the VA orthopedic surgery clinic due to left knee pain and symtoms of mechanical locking. Results of a MRI showed degenerative changes and a meniscal tear and he was on the waiting list for a left knee arthroscopy. He provided conflicting reports as to whether his knee was stable. The physician's assistant noted that the Veteran's lower left extremity was atrophied compared to the right. Range of left knee motion was from 0 to 100 degrees. He had a negative anterior drawer sign and was stable to varus and valgus stress with a mild varus deformity. There was medial and lateral joint line tenderness and mild crepitus with range of motion over the anterior aspect of the knee. The assessment was probable early degenerative joint disease of the left knee with a probable meniscus tear that caused some mechanical symtoms. The Veteran had a stable knee and there did not appear to be any ligamentous or tendon damage. In December 2006, the Veteran underwent a partial lateral meniscectomy with resection of the lateral plica but no medial meniscus tear was noted. See January 13, 2009 record from M.V.H., M.D., discussed infra. VA outpatient orthopedic surgery records reveal that, in January 2007, the Veteran was concerned about decreased range of knee motion and persistent swelling. Objectively, there was mild knee swelling and some medial joint line tenderness. He had full range of knee extension and was able to flex his knee from 80 to 85 degrees actively. Pain worsened when he actively flexed the knee. He had intact strength in his lower left extremity and there was no atrophy, redness, or excessive warmth. An injection was administered and physical therapy was ordered for range of motion and quadriceps strengthening, gait evaluation, and modalities. The records show that, in February 2007, the Veteran reported persistent left knee pain that improved with decreased activity. He was on light duty, exercised on a bicycle as instructed and also used a treadmill. He did not use a brace. Objectively, his left knee had mild edema and tenderness to palpation along the medial patella and inferior lateral joint line. His incisions were well healed. There was no pain with patella movement. Range of motion was from 0 to 100 degrees. There was no varus/valgus instability, and McMurray's, Lachman's, and posterior drawer signs were all negative. He was instructed to wear a neoprene compression brace and continue using the exercise bicycle but avoid the treadmill. In March 2007, the Veteran complained of pain and locking symtoms since his December 2006 left knee arthroscopy. Objectively, there were no effusions and his incisions were well-healed. He had full range of motion and there was still tenderness to palpation over the medial joint line. The Veteran was advised that with significant chondromalacia/degenerative arthritis, no future scope procedure would be of any benefit. The Veteran was discharged from the clinic. The Veteran underwent VA examination on February 8, 2008. He complained of pain that he rated as 8 out of 10 on a scale of 1 to 10, with constant swelling and stiffness, and a sense of giving way. He last fell in October 2007. The Veteran had flare ups with continued weight bearing and walking less than one half hour. He took ibuprofen and prescribed pain medication and regularly wore a left knee orthosis. The Veteran was a police officer at the Dallas VA and missed more than 40 hours of work in 2007. He was unable to participate in any recreational activities and his driving tolerance, standing, and ambulation were limited. Objectively, the Veteran's left knee was tender diffusely predominantly in the mid patellar area. There was slight soft tissue swelling. Range of motion of the left knee was extension to -15 degrees and flexion to 95 degrees with pain at these ranges of motion. There were no additional limitations with three repetitions and no change in range of motion. There was moderately severe guarding of movement and his gait was consistently antalgic due to the left knee. Results of Lachman's and McMurray's tests were negative. The Veteran's gait was consistently antalgic due to his left knee. The diagnosis was residuals of status post lateral meniscus tear of the left knee with patellofemoral pain syndrome. Results of x-rays taken at the time showed minimal spurring of the superior pole of the patella. Additional limitation of joint motion was caused by pain, including pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. During his May 2008 Board hearing, and at his November 2006 hearing at the RO, the Veteran testified that his service-connected left knee disability affected his ability to perform his job as a Federal Police Officer with VA during which he rode a bicycle. He had progressively worsening knee pain and instability during the day. The Veteran said that he last fell in October 2007 but constantly felt as he would fall, even with the knee brace. At the end of the day, he iced his knee at home that delayed time he could spend with his young son and was unable to run around and play with him. The Veteran's knee problems affected his social activities with his wife and ability to drive or stand more than 30 minutes. During 2007 he missed more than 40 hours of work and, to date, 10 to 12 hours, due to his knee disability. A July 3, 2008 VA examination report indicates that the Veteran complained of pain, weakness, stiffness, swelling, head and redness, instability or giving way, "locking", fatigability, and lack of endurance. He reported having two knee surgeries in 2004 (the Board only has records of the May 2004 surgery) and one in December 2006. The Veteran complained of sharp, aching daily left knee pain with stiffness and a history of instability. He wore a knee brace on a daily basis. The Veteran took ibuprofen for pain. He had acute flare ups of pain with surgery in 2004 and with his recent December 2006 surgery. The Veteran reported that he took multiple days of sick leave since his last surgery due to his left knee pain. He worked as a VA police officer and denied any episodes of dislocation or recurrent subluxation. Range of motion of the Veteran's left knee was flexion from 0 to 135 degrees (out of 140 degrees) with mild discomfort. The range of extension was not specifically reported, but the instructions to the examiner indicated that he should report any limitation beyond zero degrees as "-" the missing number of degrees. The fact that the examiner reported a range of motion beginning with "0" indicates that there was no limitation of extension. The left knee was painful. There were no additional limitations with three repetitions of movements during the physical examination related to pain, fatigue, incoordination, weakness, or lack of endurance. The examiner reported objective evidence of painful motion without heat, redness, swelling, or tenderness of the left knee. Stability of the left knee was intact with negative Lachman test and negative McMurray sign. There was no abnormal weight bearing and no ankylosis. Diagnoses included torn medial meniscus, of the left knee, status post three surgeries with residuals. Private medical records from Dr. M.V.H., an orthopedic surgeon, indicate that, in January 2009, the Veteran complained of a work-related left knee accident. He had a knee brace that he was unable to wear at work. The Veteran gave a history of a prior meniscus tear in 2006. Objectively, range of motion of the Veteran's left knee was from 0 to 120 degrees with a positive McMurray's sign and medial joint line tenderness on the left. No specific neurologic deficit was appreciated. Single leg raise was negative, bilaterally. The assessment was left knee internal derangement with apparent medial collateral ligament (MCL) strain/sprain, with possible tear as well as probable medial meniscus tear. The Veteran was scheduled for arthroscopic surgery. On March 6, 2009, the Veteran underwent arthroscopic evaluation, removal of loose bodies, and chondroplasty of his left knee, performed by Dr. M.V.H. When seen for follow up, on March 12, 2009, the Veteran said he felt better but it was noted that he had "lots of issues going on in that knee" with "chondral flaking off" and "loose bodies". A February 2010 private MRI report of the Veteran's left knee showed small joint effusion, evidence of prior arthroscopic surgery, a diminutive-appearing body and posterior horn of the lateral meniscus likely related to the prior surgery, possible small tear of the anterior horn of the lateral meniscus versus scarring from prior surgery, minimal degenerative spurring of the lateral and anterior compartments, and mild patellar and quadriceps tendinopathy. Results of x-rays of the Veteran's left knee taken by VA in August 2010 revealed normal joint spaces with mild tricompartmental degenerative joint disease and no fracture. In October 2010, the Veteran underwent another VA examination. The Veteran worked as a police officer for the Dallas VA medical center for the past eight years. He gave a history of six left knee surgeries, with two open surgeries and four arthroscopies, the last in March 2009. The Veteran complained of chronic and constant left knee pain that he rated as 8 out of 10 on a scale of 1 to 10, and instability. He had missed 11 to 12 days of work in the past year due his knee, and took Motrin and prescribed pain medications. The Veteran complained of his left knee giving way, instability, pain, stiffness, weakness, and decreased speed of his left knee. He was able to stand for 15 to 30 minutes and walk one quarter of a mile and was issued a left knee brace that he frequently had to wear. The Veteran had an antalgic gait, with evidence of left knee crepitus, abnormal motion, guarding of movement, crepitaiton, click, snapping, and grinding. There was no instability, or patellar or meniscus abnormality. Left knee flexion was from 10 to 45 degrees and extension was limited by10 degrees. There was objective evidence of pain with repetitive motion. After repetitive motion, flexion was from 20 to 30 degrees and extension was from 20 to 20 degrees. There was no joint ankylosis. The examiner commented that the Veteran had markedly reduced left knee range of motion with his muscle contracting and only 10 degrees of range of motion after his third DeLuca range of motion test. It was noted; however, that the Veteran had muscular legs with no evidence of asymmetrical left quadriceps or hamstring atrophy. Further, the VA examiner stated that, at the end of the examination, the Veteran got up to leave from a fairly low chair, and kept his left knee in the 20-30 degree flexed range of motion, that was actually difficult to do. It required that the Veteran roll toward his right hip and push up on the armrest using his right arm and pushing considerably with his right leg. The VA examiner stated that the Veteran left the building, walked out to his vehicle, and ingressed quickly into the driver's seat, leading with his right leg. The VA examiner said that, while he was unable to see the precise range of motion of the Veteran's left knee (as his view of the Veteran's leg was blocked by the car door), one could not get into one's driver's seat with the right leg first followed by the left leg without substantial range of motion, to approximately 90 degrees. The examiner noted the Veteran's report that he had lost two weeks of time from work due to left knee pain and doctors' visits. VA outpatient records reflect that the Veteran was evaluated by an orthopedic surgeon on January 3rd and July 1st, 2011, due to complaints of left knee pain, swelling, and giving way. On July 1st, the Veteran complained of constant crackling and grinding in both knees, with the left more symptomatic and "gives out" even if wearing a brace. During both examinations, he was observed to be overweight and ambulated with a normal cadence and without antalgia. There was no erythema or knee swelling and the Veteran had functional range of motion with "full" functional range of motion noted in July. There was "voluntary restriction" during the physical examinations with apparent retropatellar dysphoria but no crepitation or grind. McMurray and Pivot Shift tests were negative and the Veteran's knee was stable to stress testing in all planes. Additionally, the VA orthopedic surgeon noted the Veteran's exaggerated reactive pain throughout the examinations/passive testing. Results of x-rays revealed no progression of mild degenerative arthritic changes of both knees. The diagnoses included status/post multiple arthroscopies of the left knee, remotely; clinical chondromalacia left more than right, chronic; and subjective versus objective discrepancies noted. In sum, the VA orthopedic surgeon said that the Veteran had no signs or symtoms of internal derangement. Analysis Prior to August 4, 2005, there were no clinical findings of subluxation or instability of the left knee such as to warrant a rating in excess of 10 percent under Diagnostic Code 5257. In fact, the March 2002 VA examiner reported no instability. The August 4, 2005 VA record reflects the first finding of moderate subluxation. Since August 4, 2005, the Veteran has repeatedly complained of left knee instability, but examiner did not find severe knee instability on examinations. Notably, in December 2005 a VA clinician reported "some" lateral instability and a small amount of anterior/posterior subluxation. VA examiners in May 2006, July 2008, and October 2010, reported no clinical instability of the Veteran's left knee and, in 2011, a VA orthopedic surgeon said that McMurray and Pivot Shift tests were negative and the Veteran's knee was stable to stress testing in all planes. Simply put, there is no objective evidence of more than moderate subluxation in the Veteran's left knee such as to warrant a higher rating under DC 5257. While the Veteran would be competent to report instability, he has not proven to be a reliable historian or informant. He has reported some history that examiner have found to be contrary to the documented record and has been observed to exaggerate his symptoms. The observations on the most recent examination show that he attempted to demonstrate much more severe limitation of motion than he was actually capable of performing. Accordingly, the Board must find that the Veteran's reports of his symptomatology are not credible. Further, prior to February 2, 2008, there is no objective evidence of left knee extension limited to 10 degrees such as to warrant a compensable evaluation. Range of motion of the Veteran's left knee was from 0 to 135 degrees (during the March 2002 VA examination), from 0 to 120 (in April 2006), from 0 to 140 degrees (during the May 2006 VA examination), from 0 to 140 (in August 2006), and to -15 (during the February 2, 2008 VA examination). Thus, prior to February 2, 2008, there is no medical evidence of left knee extension such as to warrant a compensable rating under DC 5261. The findings on the February examination would support a 20 percent rating under DC 5260 based on limitation of extension. On the July 2008 examination extension was normal at 0 degrees. This evidence supports the grant of a 20 percent rating under that DC from February 8, 2008 to July 2, 2008. Since February 2, 2008, there is no objective evidence of left knee extension limited to 15 degrees such as to warrant a 20 percent disability rating. This is so because range of motion of the Veteran's knee was from 0 to 135 degrees in July 2008. Although, in October 2010, the VA examiner reported extension limited by 10 degrees and, after repetitive motion, limited to 20 degrees, the examiner also reported that the Veteran easily walked to his vehicle and entered it, suggesting that these findings were questionable. More significantly, in January and July 2011, the VA orthopedic surgeon reported that the Veteran had full and functional range of left knee motion. Thus, the preponderance of the competent medical evidence demonstrates that a rating in excess of 10 percent for limited left knee extension is not warranted under DC 5261 since July 3, 2008. Further, prior to July 3, 2008, there is no objective evidence of left knee flexion limited to 45 degrees such as to warrant a compensable evaluation under DC 5260, given the ranges of motion discussed above. Nor are there objective findings of flexion limited to 30 degrees since July 3, 2008 to warrant a 20 percent rating under DC 5260. While the October 2010 VA examiner reported that the Veteran's left knee flexion was from 10 to 45 degrees and, after repetition, was limited to from 20 to 30 degrees, these findings are questionable. This is so, given the Veteran's observed ease in exiting the medical facility and entering his vehicle, that required a range of motion of approximately 90 degrees, according to the VA examiner. Moreover, in 2011, the VA orthopedic surgeon reported that the Veteran had full and functional range of left knee motion. Thus, the preponderance of the competent medical evidence demonstrates that a rating in excess of 10 percent is not warranted for left knee flexion under DC 5260 since July 3, 2008. Again the Veteran is competent to report greater limitations of left knee flexion and extension, but as discussed above his reports are not deemed credible. Examination reports and treatment records show that the Veteran was never found to have additional limitation of function due to the factors enumerated in 38 C.F.R. §§ 4.40, 4.45. 38 C.F.R. §§ 4.40, 4.45; DeLuca. A higher rating is therefore, not warranted on the basis of functional impairment. The Board has also considered whether the Veteran could be assigned a separate evaluation based on the scars on his left knee. However, the medical evidence shows that such scars are not painful or tender to touch and are not adherent; they were repeatedly described as well-healed. As such, the Board finds that a separate compensable evaluation for scars on the left knee is not warranted. See 38 C.F.R. § 4.118, DCs 7803-7805 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (2005). The Board observes that the 2010 VA examination provided some evidence of knee impairment and limited range of motion; however it was unclear at what point (if any) in the ranges of motion when pain caused functional impairment or if there was any additional range of motion loss due to any weakened movement, excess fatigability, incoordination, or flare ups. The current evidence is conflicting and an examination with a longitudinal review of the evidence would be necessary to determine whether there was additional functional impairment related to the left knee disability. In sum, the record does not show that the Veteran is entitled to a rating in excess of 10 percent prior to August 5, 2004, and in excess of 20 percent thereafter, or in excess of 10 percent for limited extension and flexion, since February 8 and July 3, 2008, respectively, under DCs 5257, 5261, and 5260, for knee instability, limited extension and limited flexion, on the basis of the evidence currently of record, including the May 2006, February and July 2008, and October 2010 VA examination reports. Thus, the VA examination scheduled pursuant to the Board's March 2012 remand was necessary to more accurately access when the Veteran's left knee pain caused functional impairment; see Mitchell v. Shinseki, supra, and, as explained above, the evidence is inadequate to provide increased ratings under the applicable criteria. In a March 2012 written statement, the Veteran's service representative argued that the 2010 VA examination report was inadequate as it did not address the Veteran's subjective complaints of instability and subluxation. The Veteran has offered no explanation as to why he failed to appear for the scheduled examination. A letter dated in March 2012 informed him that a request had been sent to the VA medical facility "nearest you" to schedule him for an examination, that he would be notified of the date and location of the examination, and that his claim could be denied if he failed to report for an examination. The Veteran has not asserted non-receipt of the notice of the examination and there is no other evidence of non-receipt. The presumption of regularity dictates that the Board presume the Veteran was properly notified of the examination. Kyhn v. Shinseki, 24 Vet. App. at 235. The Court in Hart held that the record is inadequate and the need for a new examination occurs when there is evidence of a possible increase in disability. Id. at 508. In other words, when there is evidence of a possible increase in the severity of a disability and an increased rating is otherwise not warranted based on the evidence already of record, the evidence is inadequate to determine whether staged ratings are appropriate in the absence of a new VA examination. As explained above, a new VA examination was necessary in this case because the Board determined that the 2010 VA examination was inadequate. Therefore, the Board is unable to determine whether any staged ratings are appropriate based on the evidence that currently exists in the claims file, beyond that already assigned by the RO. Nevertheless, the Court's holding in Hart is not applicable in this case in light of the provisions of 38 C.F.R. § 3.655. That regulation makes clear that when a claimant fails to report for a necessary examination scheduled in conjunction with a claim for increase, "the claim shall be denied." 38 C.F.R. § 3.655(b). The regulation also directs that when a claimant fails to appear for a necessary examination scheduled in conjunction with an original compensation claim, "the claim shall be rated based on the evidence of record." In order to provide any further staged ratings pursuant to Hart, the Board would have to rate the Veteran's left knee disability based on the evidence of record. However, the fact that 38 C.F.R. § 3.655(b) provides a distinction between original claims and claims for increase and specifies that only an original claim is to be rated based on the evidence of record, whereas a claim for increase is to be denied, makes it is clear that the evidence of record is inadequate to adjudicate the current claim for increase in light of his failure to report for a necessary VA examination. Thus, staged ratings, beyond that already assigned by the RO, may not be provided and the Court's holding in Hart is inapplicable to the facts of this case. In sum, the Veteran received proper notice of a necessary VA examination and was, therefore, aware of the consequences of a failure to report without good cause. He has not shown good cause for his failure to appear for the VA examination scheduled 2012. As such, his claims must be denied. In deciding whether good cause was shown for the Veteran's failure to report for the necessary examination, the Board has considered the doctrine of reasonable doubt, but the preponderance of the evidence is against a finding that there was good cause and reasonable doubt does not arise. The claims are therefore denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.655(b). As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, supra; Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). The Board has also considered whether the Veteran's left knee disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board notes that during his 2006 personal hearing and 2008 Board hearing, the Veteran testified that his knee disability affected his ability to adequately perform his job as a Federal Police Officer with VA and that he used 40 hours of sick leave in 2007 due to his knee disability. The 2010 VA examiner reported that the Veteran missed two weeks of work in the past year due to his left knee disability. However, the Veteran has submitted no documentation to support that assertion, e.g., sick leave reports, wage statements. To the extent that the Veteran was unable to work due to his May 2004, December 2006, and March 2009 left knee surgeries during the pendency of his appeal, the RO granted temporary total disability ratings during his convalescence. See e.g., 38 C.F.R. § 4.30 (2012). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record reveals that the Veteran has told VA clinicians that he is employed as a police officer with the Dallas VA medical facility. It has not been suggested that his left knee disabilities preclude his employment. Thus, any further consideration of the Veteran's claims under Rice is not warranted at this time. (CONTINUED ON NEXT PAGE) ORDER An increased rating for lateral meniscus tear of the left knee, postoperative residuals with instability, evaluated as 10 percent disabling prior to August 4, 2005 and as 20 percent disabling thereafter, is denied. An initial 20 percent rating for lateral meniscus tear of the left knee, postoperative residuals with limited extension, from February 8, 2008, to July 2, 2008is granted. An initial rating in excess of 10 percent for lateral meniscus tear of the left knee, postoperative residuals with limited extension, from July 3, and 2008is denied. An initial rating in excess of 10 percent for lateral meniscus tear of the left knee, post operative residuals with limited flexion, effective from July 3, 2008, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs