Citation Nr: 1307091 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 08-02 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right knee injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1988. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). Subsequently, the Board remanded this matter for additional development in a January 2011 decision. The Board notes that during the course of this appeal the RO/Appeals Management Center (AMC) issued a rating decision in March 2012 that granted a separate rating for right knee loss of flexion, effective January 24, 2011, in addition to the 10 percent disability rating presently on appeal. In that same March 2012 rating decision, the RO/AMC also granted service connection for a left knee disability and for a low back disability, both secondary to the Veteran's service-connected right knee disability. As those claims for secondary service connection were on appeal in the Board's January 2011 remand, but have now been granted in full, they are no longer listed as on appeal. FINDINGS OF FACT 1 During the period of this appeal, the evidence of record does not show that the Veteran's right knee disability was manifested by a moderate recurrent subluxation or lateral instability, flexion limited to 30 degrees, or extension limited to 15 degrees. 2. For the period from January 31, 2007, when the Veteran's claim for a higher rating for his right knee disability was received, to January 23, 2011, the Veteran's right knee disability was manifested by X-ray evidence of degenerative arthritis with noncompensable limitation of motion and painful motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the residuals of a right knee injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a 10 percent rating, but no more, for mild degenerative arthritis of the right knee joint have been met for the period from January 31, 2007, to January 23, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the Court, have been fulfilled by information provided to the Veteran in letters from the RO dated in February 2007, April 2009, and January 2011. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Thereafter, a supplemental statement of the case was issued in March 2012. An additional notice as to disability ratings and effective dates was provided in the correspondence dated in February 2007 and January 2011. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1692 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist also has been fulfilled as VA medical records relevant to this matter have been requested or obtained and the Veteran was provided with VA examinations of his right knee. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Increased Rating - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. 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). 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, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. Factual Background and Analysis Historically, the Veteran was granted service connection for the residuals of a right knee injury in a March 2005 rating decision and awarded a 10 percent disability rating, effective June 8, 2004, the day his claim for benefits was submitted to VA, because the VA examination showed slight instability of the knee. In January 2007, the Veteran filed a claim for an increased rating for his service-connected right knee. He stated that he received a shot at VA for his right knee that was supposed to last for three months, but the relief only lasted for three days. The Veteran's right knee disability has been rated under Diagnostic Code 5257 for knee impairment with recurrent subluxation or lateral instability of the knee. The affected knee is rated 10 percent when the impairment is slight, 20 percent when moderate, and a maximum 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight,' "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's right knee disability may also be rated under various other diagnostic codes, including the following: Diagnostic Code 5003 concerns evaluation as degenerative arthritis established by X-ray findings, which in turn is evaluated based on the limitation of motion under the appropriate diagnostic code for the specific joint involved, or in this case, Diagnostic Code 5260 for limitation of leg flexion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The knees are considered major joints. 38 C.F.R. § 4.45. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted when extension is limited to 10 degrees, a 20 percent rating is warranted when extension is limited to 15 degrees and a 30 percent rating is warranted when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA standards describe normal range of motion of the knee as from 0 to 140 degrees. See 38 C.F.R. § 4.71, Plate II. The Board also must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004. Moreover, the VA General Counsel has issued separate precedential opinions holding that the Veteran also may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257 or 5259. VAOPGCPREC 23-97(July 1, 1997); VAOPGCPREC 9-98; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The relevant focus for adjudicating an increased rating claim is the evidence concerning the state of the disability from the time period one year before the claim was filed, in this case January 2007, until VA makes a final decision on the claim. See generally Hart, 21 Vet. App. at 509. A February 2006 VA orthopedic clinic record noted that the Veteran had about one month's relief after an injection in the right knee. He complained of occasional catching, but no locking or giving way. It was noted that his knee brace helped him tremendously. On examination, minimal tenderness was noted medially, the right knee was stable to varus/valgus stress, McMurray's test was negative, and a patellofemoral grind was negative. Assessment was mild degenerative joint disease of the right knee. In a February 2007 signed statement, the Veteran stated that he had a difficult time standing on his right leg, which he said he tended to favor because of his right knee injury. A March 2007 VA X-ray study of the right knee showed some mild narrowing of the medial compartment without any acute fracture, osteochondral defect, or soft tissue calcification. A small effusion was noted. A March 2007 VA medical record noted that the Veteran complained of an increase in right knee pain and more mechanical symptoms with the right knee giving way with occasional catching/locking. He wore a knee sleeve which wore out his clothing. It was noted that he had difficulty working as a laborer and in running due to knee pain. On examination, minimal effusion of the right knee was noted with no warmth. Range of motion was from 0 to 125 degrees with no varus/valgus instability. Assessment was right knee pain with mechanical symptoms possible for meniscal/ligamentous injury. A magnetic resonance imaging (MRI) scan was recommended. A March 2007 MRI scan of the right knee showed, according to a summary by the January 2011 VA examiner, a signal alteration in the medial meniscus comparable to myxoid degeneration. The meniscal tear was not seen with certainty. The medial and lateral ligaments were intact. Some mild chondromalacia changes were noted. The Veteran underwent a VA examination of his right knee in May 2007. He complained of persistent pain, aching, soreness, and tenderness in his right knee. It was noted that he "also kind of" favored the right knee at times. He wore a right knee brace and was able to do his normal job and his normal daily activities. Range of motion of the right knee was normal (to 140 degrees of flexion) with some pain at the extremes of motion. The VA examiner noted that repetitive use caused increasing symptomatology in the right knee, but there was no change in range of motion of the right knee during this examination. No flare-ups were noted. The right knee also had some mild looseness to medial testing. An X-ray study showed minimal degenerative arthritic changes in the right knee. Diagnosis was residual injury to the right knee. A June 2007 VA orthopedic clinic record noted that the Veteran had been followed for right knee pain. He had received an injection in the past which brought relief for about a month or so. He complained of pain in the medial aspect of his knee. He had been doing some exercises and was able to run about 3 miles, but had some pain after he ran. He took Tylenol Arthritis for pain. It was also noted that he had gained about 30 pounds over the last five years and now weighed approximately 204 pounds. Examination of the right knee showed minimal effusion with no warmth or erythema. Range of motion for the right knee was described as good from 0 to 120 degrees. There was tenderness to palpation about his medial joint line with no instability with varus or valgus stress. There was mild laxity (1+) with anterior stressing and no instability with posterior Drawer. McMurray test was negative. There was no pain over the anterior pes anserinus bursa and no pain with patellar compression. Impression was right knee possible degenerative meniscal tear with chondromalacia. The Veteran disavowed any interest in knee surgery and physical therapy was recommended. A knee arthroscopy was to be discussed if knee symptoms increased or if the Veteran was able to get time off work. The examiner encouraged a weight loss program and strengthening. October 2007 VA medical records noted that the Veteran had completed a therapy program and that there was no catching, locking, swelling or giving way. It was also noted that the Veteran ambulated well without assistive devices and with a non-antalgic gait. He arose from a chair well and was able to squat. There was no effusion with the right knee. Range of motion was described as full with flexion to 130 degrees. The right knee was stable to varus/valgus stress. No tenderness was noted and no pain with patellar compression. McMurray's test was negative. Assessment was right knee chondromalacia with possible degenerative meniscal tear. He was allowed to return to running and training with the National Guard. In his January 2008 VA Form 9, Substantive Appeal, the Veteran contended that he was entitled to a higher rating because the muscles and tendons were not as strong as they used to be when he was younger. He stated that he noticed on a regular basis that his right knee wanted to buckle all the time. Even after he went to physical therapy he still felt his right knee give out. He felt that the older he got it was going to be harder for him to be able to stand to work. He also said that even the knee brace from VA did not hold up to expectations. A March 2008 VA orthopedic clinic record noted that the Veteran's right knee was doing well without pain, giving way, or swelling. The Veteran was able to run without any knee symptoms. He did not require any medications for his right knee. Range of motion was described as full with flexion to 130 degrees. The right knee was stable to varus/valgus stress. There was no anterior/posterior instability. A March 2009 VA orthopedic clinic record noted that the Veteran had a daily ache in his right knee but no severe pain. He did not take any medications and was not compliant with his knee sleeve and home exercise program. There was no giving way or swelling and the Veteran was able to work. On examination, it was noted that the Veteran had a non-antalgic gait. Range of motion was described as full with flexion to 130 degrees. There was no pain with range of motion and the right knee was stable to varus/valgus stress. There was no anterior/posterior instability. He was positive for a tender pes anserine bursa and mild parapatellar pain. Assessment was right knee chondromalacia, pes anserine bursitis, and patellar malalignment. The Veteran was advised on weight loss and a home exercise program and recommended to wear his knee sleeves more often. The Veteran declined any surgical intervention. The Veteran underwent a VA examination of his right knee in January 2011. The Veteran complained that he could not walk for long periods, heard popping in the knee, and said that it got weak and gave way, but there was no locking. He said that it felt like it was locking up at times, but never actually locked up. He also said that he "cracked" both his knees at times. He also complained of intermittent numbness and tingling of both knees that radiated into the toes. He took Ibuprofen as needed for pain. Mild flare-ups were noted weekly which lasted for a few minutes and were caused by standing for long periods of time at work. The Veteran reported that he had not been working and, therefore, he had not had any significant flare-ups for the past two years. The VA examiner observed, based on this examination, that the Veteran's pain was mild during flare-ups. On examination, gait was antalgic with evidence of abnormal weight bearing. The right knee evidenced crepitus and tenderness with the sound of clicks or snaps but no grinding. Medial/lateral mild instability was noted. While the stability of the anterior/posterior cruciate ligament in 30 degrees and 90 degrees of flexion was normal, the medial/lateral collateral ligament stability (varus/valgus) in the neutral position was abnormal. The laxity of the lateral collateral ligament was mild, or less than five degrees. The medial/lateral collateral ligament stability (varus/valgus) in 30 degrees of flexion was abnormal and the lateral collateral ligament instability in 30 degrees of flexion was mild, or less than five degrees of laxity. A patellar abnormality was noted with subpatellar tenderness. Range of motion of the right knee was flexion to 105 degrees and normal extension. There was no objective evidence of pain with active or repetitive motion. There were also no additional limitations of motion after three repetitions. There was no joint ankylosis in the right knee. An X-ray study showed no evidence of arthritis, fracture, dislocation, osseous neoplasm, infection, joint effusion, swelling, or soft tissue mass. Diagnosis was right knee chondromalacia, pes anserine bursitis, and patellar malalignment with chronic right knee pain. The January 2011 VA examiner noted there were no significant effects on the Veteran's occupation because he had been let go from his corrections officer job one or two years before and was not now working. She indicated that he would have some difficulty with lifting or carrying heavy objects and difficulty with sitting for more than two hours. She said that he would be able to stand for 4 hours, but would have to move every once in awhile to stretch the knee. He could not lift more than 50 pounds and while he was able to run, the knee could give out on him. Based on the evidence of record the Board finds that a higher rating in excess of 10 percent for the Veteran's service-connected residuals of a right knee injury is not warranted. As previously indicated, under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. Though the Veteran has complained of his right knee giving way, the objective medical evidence of record during the period of this appeal noted that the Veteran has been able to run. A June 2007 medical record showed mild laxity in the right knee with anterior stressing and no instability. Other records noted above generally showed that the right knee was stable to varus/valgus stress. While the January 2011 VA examination disclosed medial/lateral mild instability, the lateral collateral ligament instability was noted as mild, or less than five degrees of laxity in the neutral position or at 30 degrees of flexion. The Board notes the Veteran's statements during this time period that he felt his knee give out on occasion or that his right knee wanted to buckle all the time. However, the medical evidence does not demonstrate any objective evidence of more than slight recurrent subluxation or instability, such as a positive McMurray's test or Drawer sign. While the Veteran is competent to state that his right knee feels unstable, all objective medical tests undertaken to evaluate such complaints have not been supportive of any increase to his current rating for slight recurrent subluxation or instability. Upon weighing the medical evidence and the Veteran's assertions, the Board finds that the medical evidence is more persuasive. Under Diagnostic Code 5257, the Board does not find any persuasive evidence that would support a 20 percent rating for a moderate recurrent subluxation or lateral instability in the right knee for the period on appeal. The May 2007 and January 2011 VA examinations reported no episodes of dislocation or recurrent subluxation, although the January 2011 VA examiner noted some instability or laxity in the right knee. This is consistent with a slight impairment for which the Veteran received the 10 percent rating, especially in view of the fact that he was able to run during the time period of this appeal. The Board notes that a separate rating for loss of flexion was granted in a March 2012 rating decision and a 10 percent disability rating was awarded, effective January 24, 2011, the date of his last VA knee examination, pursuant to the provisions of Diagnostic Code 5260 for rating limitation of flexion. A higher separate rating for loss of flexion is not warranted for the period since January 24, 2011, because, as explained above, the Veteran's range of motion was not limited to the extent of the next higher rating under Diagnostic Codes 5260. The criteria for higher limitation of motion ratings would necessitate flexion limited to 30 degrees. Likewise, a separate rating under Diagnostic Code 5260 is not warranted for the period before January 24, 2011, because there is no evidence of flexion limited to 45 degrees during that time period, which would entitle him to a 10 percent rating under Diagnostic Code 5260. Therefore, a separate rating before January 24, 2011, or an increase for the separate rating awarded since January 24, 2011, under Diagnostic Code 5260 is not appropriate in this appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The two VA examinations of record and the VA medical records found in the claims file also fail to show any medical evidence of right knee extension limited to 10 degrees, which would entitle the Veteran to a separate compensable rating under Diagnostic Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board also has considered whether separate or increased ratings were warranted under other diagnostic codes pertaining to knee disabilities that would afford the Veteran a higher rating; however, there is no evidence of ankylosis of the right knee to warrant a rating under Diagnostic Code 5256; no evidence of symptomatic removal of semilunar cartilage under Diagnostic Code 5259; no dislocated semilunar cartilage with frequent locking pain and effusion to warrant a rating under Diagnostic Code 5258; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia and fibula; and no evidence of acquired or traumatic genu recurvatum to warrant a rating under Diagnostic Code 5263. Notwithstanding the foregoing, examination findings and the medical evidence noted above showed that the Veteran was diagnosed with arthritis of the right knee before X-ray evidence of the January 2011 VA examination showed there was then no evidence of arthritis. The Board, therefore, will consider whether a separate rating is warranted for arthritis of the right knee under the provisions of Diagnostic Code 5003. As noted above, a February 2006 VA medical record showed a diagnosis of mild degenerative joint disease of the right knee, a March 2007 X-ray study showed some mild narrowing of the medial compartment of the right knee, and an X-ray study associated with the May 2007 VA examination showed minimal degenerative arthritic changes in the right knee. As noted above, a rating under Diagnostic Code 5003 for degenerative arthritis usually requires X-ray evidence of arthritis which has been provided in the May 2007 VA examination. Therefore, the Board finds that a separate 10 percent rating for arthritis in the right knee is warranted from January 31, 2007, the date the Veteran's current claim for a higher rating for the right knee was received at VA, until January 23, 2011, the day before his most recent VA examination. As a result of the January 2011 VA examination, the Veteran was awarded a separate rating of 10 percent pursuant to Diagnostic Code 5260 for loss of flexion in the right knee. As noted above, a rating pursuant to Diagnostic Code 5003 is only awarded when the appropriate limitation of motion diagnostic code is noncompensable. As the Veteran has been awarded a separate 10 percent rating under Diagnostic Code 5260, effective January 24, 2011, the separate rating under Diagnostic Code 5003 must not extend beyond that date, regardless of whether X-ray studies showed or did not show the presence of arthritis in the knee. The evidence also reflects that the Veteran has complained of pain and limitation of motion associated with his right knee. The medical records indicate the Veteran has been treated with a right knee brace and occasional medication. The two VA examinations of record considered the effects of painful motion. The Board observes that the 10 percent rating separately assigned herein for arthritis under Diagnostic Code 5003 for the right knee, and the separate rating under Diagnostic Code 5260 for loss of flexion, contemplate the effects of any complaints of pain, swelling, weakness, or lack of endurance; in fact, Diagnostic Code 5003 mandates that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or painful motion. Accordingly, application of the DeLuca factors and the provisions of 38 C.F.R. §§ 4.40 and 4.45 in this case do not support the grant of any higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is competent to report his symptoms relating to right knee pain. The Board is aware of the Veteran's assertions as to the severity of his right knee pain. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Despite the Veteran's statements as to the symptoms of his disability, the objective evidence before the Board shows that those manifestations do not satisfy the diagnostic criteria for a higher rating for the residuals of a right knee disability under Diagnostic Code 5257. However, as explained herein, his symptomatology and the objective medical evidence of record supports the award of two separate ratings during the period of this appeal, one for degenerative arthritis before the January 2011 VA examination and another for loss of flexion since that same examination. To the extent that the Veteran has asserted that he warrants a rating in excess of 10 percent for his right knee disability, the Board finds that the preponderance of the evidence during the period of appeal is against his claim, except for the separate ratings that have been awarded during the course of this appeal. The Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected right knee disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Upon reviewing the pertinent evidence of record, for the reasons discussed above, the Board finds that at no time during the pendency of this appeal has the Veteran's service-connected right knee disorder been more disabling than as currently rated. The Board is responsible for weighing all of the evidence and finds that the preponderance of the evidence is against a higher rating for the right knee, except for the separate rating awarded since January 24, 2011 for loss of flexion and the separate rating awarded herein from January 31, 2007 to January 23, 2011, for degenerative arthritis. There is no reasonable doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The above determination is based on application of pertinent provisions of VA's Schedule for Rating Disabilities. The Board notes that there is no indication that referral is warranted in this case for consideration of the assignment of a disability rating on an extraschedular basis. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this appeal, there has been no showing that the Veteran's right knee disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. Those criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned ratings for the right knee adequately describe the severity of the Veteran's symptoms for his right knee disability. In fact, during the period of this appeal a separate rating for degenerative arthritis was granted for the time period from January 31, 2007 to January 23, 2011, and another separate rating, effective January 24, 2011, was granted for loss of flexion. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment, which, in any event, have not been documented. Referral for consideration of the assignment of a disability rating for the right knee on an extraschedular basis, therefore, is not warranted. See Thun, 22 Vet. App. at 111. (CONTINUED ON THE FOLLOWING PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for the residuals of a right knee injury is denied. Entitlement to a 10 percent disability rating for degenerative arthritis of the right knee, for the period from January 31, 2007 to January 23, 2011, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs