Citation Nr: 1309112 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-02 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increase in the ratings for a right knee disability, currently assigned staged ratings of a combined 20 percent prior to August 8, 2006, and a combined 40 percent from that date. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1945 to October 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) that assigned a combined 40 percent disability rating (based upon a formulation of 30 percent under Diagnostic Code (Code) 5261 for limitation of extension and 20 percent under Code 5257 for instability) for the Veteran's right knee disability. See 38 C.F.R. § 4.25. (As explained in a February 2012 letter and codesheet, following the January 2007 rating decision the RO corrected an error by further closing out a prior separate evaluation for degenerative joint disease of the knee under Code 5010; continuation of the rating under Code 5010 would have constituted impermissible pyramiding under VA regulations, and the correction did not change the Veteran's overall combined rating for compensation.) In June 2012, the Board remanded this case for additional development. The Board notes that the 40 percent combined rating currently in effect and on appeal in this case has been assigned effective from August 8, 2006. A typographical error in the Board's prior remand of this issue inadvertently referred to the date (in the listing of the issue on the title page) with the year "2008." The correct date now appears on the listing of the issue in the title page of this decision. The Board finds that there has been compliance with the directives of the Board's June 2012 remand. In this regard, the Board notes that all pertinent medical evidence has been determined to be of record, and the Veteran was afforded a new adequate VA medical examination in July 2012, and the report of that examination is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claim for increase was received on August 8, 2006; during the year prior to that date there was no competent evidence showing that his right knee disability had worsened to the extent that it warranted a combined disability rating in excess of 20 percent. 2. Throughout the period from August 8, 2006, the Veteran's right knee disability has been manifested by arthritis, moderate (but not severe) subluxation, moderate (but not severe) lateral instability, flexion limited to 80 degrees (but not limited to 45 degrees), and extension functionally limited to the 30 degree position (but not limited to the 45 degree position). CONCLUSIONS OF LAW 1. A combined rating in excess of 20 percent is not warranted for the Veteran's right knee disability prior to August 8, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.71a; Codes 5010, 5256-5263 (2012). 2. The Veteran's right knee disability warrants a combined rating of 50 percent (but no higher) from August 8, 2006 (based upon a formulation of 40 percent under Code 5261 for limitation of extension and 20 percent under Code 5257 for instability). 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.71a; Codes 5010, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An October 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the October 2006 notice also informed him of disability rating and effective date criteria. The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record. He has not alleged that he is prejudiced by a notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in November 2006, March 2009, and July 2012. A review of the examination reports shows that they contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by the application of a schedular rating, which is based on an average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). 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. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.) The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected right knee disability has been rated by the RO under the provisions of multiple Codes in 38 C.F.R. § 4.71a. For the period prior to August 8, 2006, a 20 percent combined rating was in effect based upon a formulation of 10 percent rating under Code 5257 for instability and a 10 percent rating under Code 5010 for degenerative joint disease. For the period from August 8, 2006, a 40 percent combined rating is in effect based upon a formulation of 30 percent under Code 5261 for limitation of extension and 20 percent under Code 5257 for instability. Traumatic arthritis (established by X-ray findings) is rated as degenerative arthritis, and is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion, to be combined, not added under 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, Codes 5010-5003. 38 C.F.R. § 4.71a includes multiple diagnostic codes that evaluate impairment resulting from knee disorders, including Code 5256 (ankylosis), Code 5257 (other impairment, including recurrent subluxation or lateral instability), Code 5258 (dislocated semilunar cartilage), Code 5259 (symptomatic removal of semilunar cartilage), Code 5260 (limitation of flexion), Code 5261 (limitation of extension), Code 5262 (impairment of the tibia and fibula), and Code 5263 (genu recurvatum). Under Code 5256, a 30 percent rating may be assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a; Code 5256. Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Code 5258. Under Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a, Code 5259. 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, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited to 5 degrees warrants a 0 percent 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, Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II. Under Code 5262, a 10 percent rating is available when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring brace38 C.F.R. § 4.71a, Code 5262. Under Code 5263, a 10 percent rating is warranted for genu recurvatum. 38 C.F.R. § 4.71a, Code 5263. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. Separate ratings may be assigned for knee disability under Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23- 97 and VAOPGCREC 9-98. A precedent opinion by VA General Counsel holds that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Code 5260 and a compensable limitation of extension under Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). As discussed in more detail below, during the pendency of this appeal the Veteran has considered surgical replacement of his right knee joint. However, as has been now clearly explained in the July 2012 VA examination report (discussed below), the Veteran has not undergone knee replacement surgery as he and his doctors have concluded that such a procedure is inappropriate in light of the Veteran's other health issues. Thus, the rating criteria specific to cases of surgical knee replacement need not be further discussed in this decision. On November 2006 fee-basis examination (on behalf of VA) the Veteran complained of weakness of the knees when using steps and standing or walking at length; stiffness after lying down or sitting at length; and swelling after walking. He complained of heat with the pain, and giving way of the knee with lack of endurance when standing and walking. He reported fatigability and a need to rest frequently, with walking limited to 40 yards at a time. He also reported that the knee dislocates if he is on an uneven surface. The described symptoms featured pain at each step or even when lying down, pain traveling up to the hip like an aching, sharp pain with severity of 9+/10. The described symptoms were elicited by physical activity and mainly relieved by ibuprofen or acetaminophen; the Veteran was able to function with medication "but very limitedly." The Veteran described that he had to manually align his knee joint otherwise he was unable to take steps. The report indicates that there had been no bedrest recommended by the Veteran's VA physician, no prosthetic implant, and the Veteran was treated with ibuprofen and acetaminophen. The report described functional impairment from the knee disability featuring the necessity to walk very slowly and unevenly due to pain, difficulty guiding steps well, and the need to stop and rest frequently. Examination of the knees revealed weakness, tenderness, abnormal movement, and guarded movement without edema, effusion, redness, or heat. The report indicates that physical examination revealed "recurrent subluxation, moderate" with locking and crepitus without joint effusion. There was no ankylosis. Right knee ranges of motion were: 90 degrees flexion and "-20" degrees extension; the examiner noted pain, fatigue, weakness, lack of endurance, and incoordination "all throughout the limited range of motion...." The examiner stated that after repetitive use the Veteran would have additional limitation of motion of 10 degrees with pain, fatigue, weakness, lack of endurance and incoordination all through the limited range of motion; the examiner identified that pain had the major impact on function. Medial and lateral collateral stability tests were "moderately abnormal," anterior and posterior cruciate stability tests were "slightly abnormal," and medial and lateral meniscus tests were "moderately abnormal." The examiner noted that the Veteran's gait was observably slow and that he walked with difficulty; the examiner remarked that the Veteran "will require an assistive device for ambulation like a cane." The examiner diagnosed (in pertinent part) right knee degenerative joint disease with instability. The examiner remarked that the effect of the disability (contemplating disability of both knees for the purposes of this comment) on the Veteran's usual occupation and daily activities featured difficulty with standing, walking (even with an assistive device), climbing up and down stairs, and lifting; the examiner noted that the Veteran was unable to kneel or squat. On March 2009 fee-basis examination (on behalf of VA), the Veteran complained of constant right knee pain, described as 7 out of 10 in severity and aggravated by physical activity and cold air. The Veteran reported that ibuprofen and rest relieved the pain, and that he could function with medication. The pain was reportedly accompanied by weakness, stiffness, giving way, lack of endurance, and fatigability. He reported sometimes receiving cortisone shots. He described functional impairment in terms of difficulty ambulating, needing to take very small and slow steps. He required a cane for walking, and sometimes used crutches. On physical examination, right knee ranges of motion were: flexion to 130 degrees with pain occurring at the 130 degree position, and extension to 0 degrees with no limitation due to pain. There were no signs of edema, effusion, weakness, redness, heat, and guarding of movement; and there was no subluxation. There was no locking pain or genu recurvatum. The anterior and posterior cruciate ligament stability test of the right knee was within normal limits. The medial and lateral collateral ligament stability test of the right knee was within normal limits. The medial and lateral meniscus test of the right knee was within normal limits. The examiner diagnosed right knee internal derangement with osteoarthritis, manifested by subjective constant pain and objective bony hypertrophy, decreased range of motion, and antalgic gait favoring the right leg. The examiner assessed that the effect of the condition on the Veteran's daily activity is moderate impairment of the ability of ambulate, stand, walk, and climb stairs. An attached report of MRI study of the right knee shows a number of findings, including severe tricompartmental degenerative arthrosis, degenerative desiccated macerated tear of the entire substance of the medial meniscus, almost complete degenerative desiccated tear of the entire substance of the lateral meniscus, and lack of identification of the anterior cruciate ligament (with the other ligaments intact). Subsequent VA treatment records show that in October 2010, the Veteran received emergency room treatment for "[k]nee pain exacerbation." The Veteran was "asking for advice about possible knee surgery," was provided an increase in dosage for pain medications, and was "[a]dvised to talk to PCP about possible surgery and risks." The reports from this time reflect that the Veteran had been experiencing an increase in knee pain for "2 weeks and progressively worse." A September 2011 VA treatment report notes that the Veteran "has to crawl on his hands and knees to get to his bedroom upstairs." In March 2012, the Veteran submitted a statement (in written markings upon a copy of a supplemental statement of the case) indicating that ibuprofen once relieved his pain but "not now." He also explained that he climbs his stairs with his hands and his feet, but cannot allow his knees to touch a surface and cannot otherwise put any strain upon his knees. On July 2012 VA examination, the diagnosis was degenerative joint disease (arthritis) of the right knee associated with complaints of chronic pain and difficulty with mobility and walking. The report notes that the Veteran requires the use of two crutches and especially has difficulty rising from the seated position. He related that symptom flare-ups impact his function and that cold weather, standing, and walking increase the pain. On physical examination, right knee ranges of motion testing revealed 90 degrees flexion with noted objective evidence of painful motion beginning at the 0 degree position (indicating painful motion throughout the range of flexion). Testing revealed extension to the 10 degree position, with painful motion beginning at the 0 degree position. The Board observes that the examiner's indication that there was objective evidence of painful motion during extension beginning at the 0 degree position is an apparent error, as the report otherwise indicates that the Veteran is unable to extend the knee to the 0 degree position; the Board has accordingly interpreted the report as intending to indicate that there was painful motion throughout the range of extension (an interpretation favorable to the Veteran's claim). Repetitive-use testing with 3 repetitions revealed right knee flexion limited to 90 degrees and extension limited to the 15 degree position. The July 2012 VA examination report goes on to describe that additional functional loss in the right knee involves less movement than normal; weakened movement; excess fatigability; pain on movement; swelling, disturbance of locomotion; and interference with sitting, standing, and weight bearing. There was tenderness/pain to palpation for joint line or soft tissues. Muscle strength during flexion and extension was 4/5, noted to reflect "active movement against some resistance." Joint stability tests were normal for the right knee with regard to anterior instability, posterior instability, and medial-lateral instability. There was no evidence or history of recurrent patellar subluxation/dislocation, no acquired genu recurvatum, nor any other pertinent tibial and/or fibial impairment. It was noted that the Veteran has never had any meniscal conditions or surgical procedures for a meniscal condition and has not had joint replacement or other pertinent surgical procedures. He constantly required two crutches with upper arm supports for ambulation. It was noted that the Veteran has diagnostically confirmed arthritis of the right knee, with no evidence of patellar subluxation. The examiner opined that the Veteran's knee disability (contemplating, for the purposes of this comment, both knees) renders him unable to perform any employment that requires standing or walking without assistance, but would not prevent sedentary work that did not involve lifting, climbing, bending, or squatting. The examiner also commented that the knee disability is severe enough for joint replacement; however due to the Veteran's advanced age and heart condition he and his doctors elected to not proceed with such surgery. The Board has reviewed the Veteran's complete treatment records, featuring VA medical reports, beyond those discussed above. They include additional references to the Veteran's right knee disability and symptom complaints at various time. The information presented in these reports is less detailed and presents generally limited findings pertinent to proper application of the rating criteria relative to the findings presented in the thorough VA examination reports discussed above (which have been prepared for rating evaluation purposes). Significantly, the Board notes that the Veteran's treatment records from the pertinent period do not present any information pertinently expanding the shown facts in this matter or providing a basis for assignment of increased ratings beyond what is shown in the VA examination reports addressed above. The Board has also considered the Veteran's other testimony and statements of record during the period on appeal. His statements and testimony concerning his right knee symptoms are essentially consistent with his detailed statements documented in the VA examination reports from different times in response to pertinent questioning from medical professionals. Thus, the Veteran's essential symptom complaints in this case have been contemplated in the discussion of the evidence above. The evidence pertaining to the period from August 8, 2006 onward shows that the Veteran has had confirmed arthritis of the right leg with compensable limitation of motion. The right leg is clearly shown to retain some degree of motion on every examination and has never been found to be ankylosed; therefore, Code 5256 for ankylosis is not for application. The evidence, including several thorough VA examination reports, does not indicate any involvement of dislocated semilunar cartilage and the medical reports clearly establish that the Veteran has not had any operation to remove semilunar cartilage (he does not contend otherwise); therefore, Codes 5258 and 5259 are not for application. Additionally, the evidence does not reflect impairment of the tibia and fibula or genu recurvatum in this case, and the most recent July 2012 VA examination report expressly indicates that no such features are present; therefore, Codes 5262 and 5263 are not for application. The most recent two of the three VA examination reports from the period following August 8, 2006, indicate that medical inspection revealed no subluxation and no lateral instability of the right knee (stability tests were within normal limits). The most significant indication of subluxation and lateral instability of the right knee during this period is the November 2006 VA examination report indicating that the examiner observed evidence of "recurrent subluxation, moderate" of the right knee during physical examination as well as "moderately abnormal" results to lateral stability testing. Moderate recurrent subluxation and moderate lateral instability meet the criteria for a 20 percent disability rating under Code 5257. The Veteran is already in receipt of a 20 percent disability rating under Code 5257, contemplating the moderate recurrent subluxation and lateral instability shown on the November 2006 VA examination report. A higher rating under this Code requires "severe" recurrent subluxation or "severe" lateral instability. There is no evidence of record suggesting severe recurrent subluxation or severe lateral instability. The more recent VA examination reports show no indication of subluxation or lateral instability, and the earlier evidence showing subluxation and lateral instability contains clear specific medical characterizations indicating that both findings were "moderate" in severity. Accordingly, the Board concludes that a rating in excess of 20 percent under Code 5257 is not warranted. The evidence most favorable to the Veteran's claim with regard to evaluating his range of flexion during the period from August 8, 2006, shows flexion limited to 90 degrees with pain throughout the range of motion, as shown on the most recent July 2012 VA examination report and the November 2006 VA examination report. The November 2006 VA examination report further indicates that after repetitive use the Veteran lost an additional 10 degrees of range of motion due to pain, fatigue, weakness, lack of endurance and incoordination; this suggests functional limitation of flexion to 80 degrees. On July 2012 examination showing flexion limited to 90 degrees with pain throughout the range of motion, the Veteran retained 90 degrees of flexion after repetitive use testing and also had 4/5 muscle strength (active movement against some resistance) for the right knee flexion. A compensable rating for limitation of flexion under Code 5260 requires flexion limited to 45 degrees. Although the Veteran is clearly affected by significant right knee pain, evaluating the evidence with specific attention to flexion leads the Board to conclude that flexion is not functionally limited to the extent that meets the criteria for a compensable rating under Code 5260. The fact that the Veteran retained 80 to 90 degrees of flexion after repetitive testing (in the reports most favorable to his claim) and also demonstrated the strength for active flexion against resistance significantly indicates that the Veteran's right knee flexion is not functionally limited to 45 degrees. The Board also observes that the March 2009 VA examination report, between the times of reports documenting more severe symptoms, shows right knee flexion to 130 degrees even accounting for pain. Considering functional factors affected by such features as pain, weakness, and fatigability, the evidence in this case still does not show that the Veteran's 80 degrees (at least) of right knee flexion is functionally the equivalent of 45 degrees of flexion (or more limited). Accordingly, the Board concludes that a compensable rating under Code 5260 is not warranted. The evidence most favorable to the Veteran's claim with regard to evaluating his range of extension during the period from August 8, 2006, shows extension limited to the 20 degree position, and further limited to the 30 degree position after repetitive use, as shown on the November 2006 VA examination report. The most recent July 2012 VA examination report shows extension limited to the 10 degree position, further limited to 15 degrees after repetitive testing, and 4/5 muscle strength (active movement against some resistance) for the right knee extension. The Veteran is currently assigned a 30 percent rating under Code 5261 for the period from August 8, 2006; this rating contemplates extension limited to 20 degrees. The next higher rating of 40 percent for limitation of extension under Code 5261 requires extension limited to 30 degrees. The Board finds that the November 2006 VA examination report reasonably shows that the Veteran's right knee extension was functionally limited to the 30 degree position after repetitive use; this finding meets the criteria for a 40 percent rating under Code 5261. There is no contrary evidence between the time of the Veteran's filing of the claim for increase in August 2006 and the scheduling of the VA examination in November 2006. The RO assigned a 30 percent rating effective from August 8, 2006 (the date of the claim) on the basis of the November 2006 VA examination report findings; the Board finds that the November 2006 VA examination report supports assignment of a 40 percent rating under Code 5261, and assignment of that rating from the August 8, 2006, date of claim is appropriate at this time. The Board notes that medical evidence subsequent to the November 2006 VA examination report suggests lesser limitation of extension of the Veteran's right knee. However, the Board finds that the breadth of the evidence does not persuasively indicate that the Veteran's degenerative right knee disability is likely to have substantially improved over time; the Board observes the Veteran's advanced age and the evidence indicating that his right knee disability warrants a total knee replacement which has been cancelled only because other health complications make surgery non-viable. The March 2009 VA examination report showing fully normal extension without pain is manifestly inconsistent with the other significant evidence of record from both prior to and following March 2009. The most recent VA examination report, from July 2012, shows extension limited to the 15 degree position following repetitive motion. Although this result could be read to show that the right knee no longer meets the criteria for the 40 percent rating under Code 5261, and the Board has considered whether a staged rating is warranted, the Board finds that significant doubt exists as to whether the actual functional impairment of the right knee has improved since the November 2006 VA examination report. The July 2012 VA examination report indicates that the Veteran has significant pain throughout the entirety of his range of motion with demonstrable functional consequences involving the inability to walk without the assistance of two canes; the July 2012 VA examination report confirms that the right knee disability is severe enough to require joint replacement. The Board finds, resolving doubt in the Veteran's favor, that the evidence reasonably establishes that the functional impairment shown to meet the criteria for a 40 percent rating under Code 5261 in November 2006 has essentially persisted. The next higher rating under Code 5261, the maximum 50 percent rating, requires extension limited to the 45 degree position. The Board finds that such limitation is not shown at any time on appeal. Although the Veteran is clearly affected by significant right knee pain, evaluating the evidence with specific attention to extension leads the Board to conclude that extension is not functionally limited to the extent that meets the criteria for a 50 percent rating under Code 5261. That the Veteran had extension to the 30 degree position after repetitive use in the VA examination report most supportive of his claim, that he retained extension to the 15 degree position after repetitive testing in his most recent VA examination, and that he also demonstrated the strength for active extension against resistance at the most recent VA examination strongly indicates that his right knee extension is not functionally limited to the 45 degree position. The Board also observes that the March 2009 VA examination report, between the times of reports documenting more severe symptoms, shows right knee extension to the fully normal 0 degree position even accounting for pain. Considering functional factors affected by such features as pain, weakness, and fatigability, the evidence in this case still does not show that the Veteran's right knee extension has been limited to the functional equivalent of the 45 degree position (or more limited). Accordingly, the Board concludes that a rating in excess of 40 percent under Code 5261is not warranted. Additional factors that could provide a basis for an increase have also been considered; however, it is not shown that the Veteran has any functional loss beyond that currently compensated, as discussed above. 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Notably, the current ratings assigned already encompass limitation of motion due to pain. Having considered each of the Codes applicable to this case, as discussed above, the Board finds no basis for assigning of any further increased disability rating (beyond the new 40 percent rating under DC 5261 to be combined with the 20 percent under Code 5257) for the Veteran's right knee disability for the period from August 8, 2006. The Veteran's claim for an increased rating for the right knee disability was received in August 2006. The relevant period for consideration for a claim for increase is from one year prior to the date of the claim; an increased rating may be assigned up to a year prior to the receipt of a claim for such if there is evidence warranting the increase. 38 C.F.R. § 3.400 (o). Thus, it must be considered from August 2005. In this case, there is no pertinent medical evidence significantly describing features of the right knee disability from August 2005 to August 2006. There is accordingly no basis for revision of the combined 20 percent rating assigned for right knee disability prior to August 8, 2006. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's 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 the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's right knee disability and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the ratings assigned, and consequently those criteria are not inadequate. The Veteran's symptom complaints featuring subluxation and instability of the knee are contemplated by Code 5257. The Veteran's symptom complaints featuring limitation of motion (to include pain, weakness, and fatigability) are contemplated by Codes 5260 and 5261 and the regulatory provisions concerning functional loss (38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). The Veteran has not alleged any symptoms or impairment that exist but are not encompassed by schedular criteria. Therefore, referral for consideration of an extraschedular rating is not necessary. Finally, there is also no evidence (or allegation) that the Veteran's right knee disability has rendered him unemployable. The Board observes that the July 2012 VA examination report expressly indicates that the knee disability would not prevent sedentary work that did not involve lifting, climbing, bending, or squatting; no evidence or statement in this case raises a contention to the contrary. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's appeal is granted to the extent that the Board finds that an increased combined rating of 50 percent is warranted for the Veteran's service-connected right knee disability from August 8, 2006, the date of the claim. A combined rating in excess of 50 percent is not warranted under any applicable criteria or permissible combination thereof (and no combined rating in excess of 20 percent is warranted for the one year period prior to the August 8, 2006, filing of this claim). ORDER A combined rating for right knee disability in excess of 20 percent is denied for the period prior to August 8, 2006. A combined increased rating of 50 percent (based on a formulation of 30 percent under Code 5261 for limitation of extension and 20 percent under Code 5257 for instability) is granted for the right knee disability for the period from August 8, 2006, subject to the laws and regulations governing the payment of monetary benefits. A combined rating in excess of 50 percent for the right knee disability from August 8, 2006, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs