Citation Nr: 1310077 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 04-04 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral arthritis and chondromalacia of the left knee. 2. Entitlement to an initial disability rating in excess of 10 percent for patellofemoral arthritis and chondromalacia of the right knee. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from November 1980 to November 1983, June 1984 to October 1984, and October 1988 to June 2001. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted entitlement to service connection for patellofemoral arthritis and chondromalacia of each knee and assigned separate 10 percent ratings. The Veteran timely appealed the assigned ratings. In November 2007, the Board denied the claims (from another Veteran's Law Judge who has since retired with the Board). In a February 2010 Memorandum Decision, United States Court of Appeals for Veterans Claims (Court) vacated the Board's November 2007 decision and remanded the claims to the Board for compliance with the instructions provided in the Memorandum Decision. In June 2011 and September 2012, the Board remanded the claims for further development. As discussed below, the development requested has been completed, and the claims are now appropriate for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's service-connected left knee disability was manifested by flexion to no worse than 110 degrees with pain beginning at 40 degrees, extension to no worse than zero degrees, pain on active motion, increased pain, weakness, and fatigue but no additional loss of motion after repetitive use, complaints of constant pain, X-ray findings of degenerative changes, and reports of instability or "giving out." 2. Throughout the rating period on appeal, the Veteran's service-connected right knee disability was manifested by flexion to no worse than 115 degrees with pain beginning at 40 degrees, extension to no worse than zero degrees, pain on active motion, increased pain, weakness, and fatigue but no additional loss of motion after repetitive use, complaints of constant pain, X-ray findings of degenerative changes, and reports of instability or "giving out." CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent disability evaluation for left knee patellofemoral arthritis and chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent disability evaluation for right knee patellofemoral arthritis chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2012). 3. Resolving reasonable doubt in the Veteran's favor, for the entire rating period on appeal, the criteria for a separate 10 percent rating for instability of the left knee have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). 4. Resolving reasonable doubt in the Veteran's favor, for the entire rating period on appeal, the criteria for a separate 10 percent rating for instability of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Knee Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Diagnostic Codes relevant to the knee disabilities are 5003, 5010, and 5257-5261. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under Diagnostic Codes 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that 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 (Diagnostic Code 5200, etc.). 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 group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In the January 2003 rating decision on appeal, the Veteran was awarded 10 percent initial disability ratings for service-connected patellofemoral arthritis and chondromalacia of the right and left knees, effective from July 1, 2001 (the day after he separated from service), under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran contends that his knee disabilities warrant higher initial ratings, as he avers that the VA examinations have not taken his pain and functional limitations in daily life and during flare-ups into account. Moreover, he contends that he is entitled to separate ratings under Diagnostic Code 5257 given that his knees frequently give out, lock, catch, and swell. The Board will begin by reviewing the evidence most pertinent to the initial rating period on appeal. The Veteran was afforded a VA examination in August 2002. He reported constant pain, left greater than right, as well as constant grinding, painful steps, and bilateral knee swelling on a regular basis. He also stated that the knees gave out; after walking up steep inclines, his knees gave out two or three times over a three-week period. Several times, he stated he thought he was going to collapse due to the knee giving out. the left knee hurt with prolonged standing, and he stated he could only stand between 45 minutes and three hours, depending on the pain. On physical examination in August 2002, both knee had normal anatomical alignment and no effusion. The right knee demonstrated a fair amount of patellofemoral crepitus with flexion and extension. There was no ligamentous laxity, varus, or valgus movements. Anterior drawer sign was negative. There was no pain along the patellar tendon, iliotibial band, or pes anserinus. McMurray test was also negative on the right. Examination of the left knee showed negative Lachman's and McMurray's tests. There was no varus or valgus laxity, but there was mild patellofemoral grinding. Range of motion of both knees was from zero to 120 degrees. X-rays of the knees showed mild to moderate patellofemoral joint arthritis bilaterally, and no significant femorotibial arthritis. The VA examiner assessed bilateral patellofemoral arthritis and chondromalacia. In his June 2003 notice of disagreement, the Veteran wrote that he had constant knee pain and swelling, and that he was unable to stand for any length of time. An August 2003 treatment note from the 74th Medical Group indicates the Veteran was unable to go up stairs due to his bilateral knee pain. He reported that the pain was worse during cold weather and after being on his feet all day. In September 2003, the Veteran reported that his left knee buckled while bowling recently. He further reported pain with activities of daily living, right greater than left, occasional swelling, but no weakness. The Veteran was afforded another VA examination in October 2004. He reported continued pain in the anterior aspect of both knees, and stated that he was limited in his activities secondary to his knee pain. He reported occasional giving way episodes, right greater than left, and symptoms of locking and catching in the right knee. He stated that the pain in his knees was worse and more frequent, occurring on a near daily basis. On physical examination in October 2004, his right knee demonstrated one degree of hyperextension and 130 degrees of flexion. He had positive patellofemoral crepitus and positive patellar compression sign bilaterally. On the right knee, there was moderate lateral facet tenderness, but no medial facet tenderness. He had a negative apprehension sign, but some mild medial joint line tenderness on the right. Lachman's, anterior, and posterior drawer tests were negative bilaterally. Both knees were stable to varus and valgus stress. Examination of the left knee revealed two degrees of hyperextension and 130 degrees of flexion. The left knee showed some medial and lateral patellar facet tenderness, but no significant joint line tenderness in the medial and lateral joint lines. X-rays showed narrowing of the knee joint space, including all three joint compartments, and spurs at the superior/inferior poles of the patella bilaterally and at the tibial spine bilaterally. The VA examiner assessed bilateral patellofemoral arthritis. At a December 2005 VA examination, the Veteran reported pain in the anterior aspect of the knees, left greater than right. It was frequently a dull ache, but became somewhat sharp after standing from a sitting position and any type of stairs or bending of the knees. He further reported mild weakness from a deconditioning standpoint. He experienced infrequent stiffness after periods of higher exertion, and swelling with periods of heavier-type activities. He denied heat or redness. He reported occasional giving way, with one episode on the right and three episodes on the left. He denied locking. He felt as though he had a lack of endurance in the bilateral lower extremities. He stated that the pain ranged from mild-moderate to occasionally moderate-severe, depending on his activities, and seemed to be related to the amount of use of the knee joints. He also reported that the pain changed somewhat with changes in the weather, approximately three to four times per year. He did not have to modify his activities very much, but said he used a cane during periods of changes in weather, which lasted two to three days. He also wore a knee brace bilaterally approximately two times per week. He did not miss work because of his knees, but had several restrictions, including not being able to go up and down stairs. He also said he had to sit with an elevated seat for teaching, and get up and down frequently. The Veteran stated that daily activities that were affected by his knees included yard work, jogging, hunting, golfing, and any type of aerobic exercise where he had to use his legs. On physical examination in December 2005, passive and active range of motion without resistance was from zero to 130 degrees bilaterally. When asked to squat while supporting his weight, he was only able to squat from zero to 90 degrees, with pain from 45 to 90 degrees. on greater than five repetitions, there was no increased loss of range of motion due to pain, weakness, lack of endurance, or incoordination, but the knee was visibly weaker than the examiner expected, and the Veteran demonstrated facial grimacing and audible indicators of pain in the knees. There was significant crepitation bilaterally at the patellofemoral joints. There was no varus or valgus instability, and Lachman's was negative bilaterally. There was no warmth, erythema, or effusion. There was a markedly positive patellofemoral grind test, which the Veteran said replicated his usual knee symptoms. McMurray's test was negative. There was no gross malalignment of the lower extremities bilaterally. There was no pain over the patellar tendon origin or insertion on either side to palpation. X-rays showed evidence of arthritis degenerative changes of the patellofemoral joints bilaterally. The VA examiner assessed degenerative arthritis of the bilateral knees. The Veteran was afforded another VA examination in June 2011. He stated that he used a knee brace every other week due to increased pain when he knew he was going to be active. He also used a cane in the winter and when he drove and walked for a long period of time. He reported that his knees gave out, but he had not fallen as he was able to catch himself. He also reported weakness and swelling. He denied dislocations or subluxations. He said he could walk no more than 200 yards, and that if he drove or sat in one place for too long a period, his knees became stiff. He also had difficulty getting up out of a chair and walking after sitting for extended periods. He could only stand for a very short period of time. In terms of activities of daily living, he reported no problems with eating, grooming, bathing, toileting, or dressing. He was okay with driving, but not for long periods of time due to pain and stiffness. He did not perform any recreational activities. The Veteran stated his pain was constant, and ranged from a dull ache to a throb. Currently, the pain in the left knee was at a level of 10 out of 10 in severity, and on the right it was at a level of 3 or 4 out of 10. Typically, he stated the left knee pain was also at a level of 3 or 4 out of 10. The VA examiner noted that the Veteran did not act as if he were in pain at a level of 10 out of 10, as he was able to speak to the examiner without difficulty. The Veteran reported flare-ups of pain which were precipitated by weather and activity. He could not state how often the flare-ups occurred. On physical examination in June 2011, palpation of the right knee medial joint, lateral joint, posterior, and patellar produced severe pain. The Veteran said the left knee pain was so severe that he did not want the examiner to touch it. Range of motion was from zero to 115 degrees on the right, and zero to 110 degrees on the left. There was pain with range of motion beginning at 40 degrees of flexion in both knees. The VA examiner noted that the Veteran would not let him passively gain more flexion in the knees than what he could actively flex himself due to extreme pain. There was no instability to varus or valgus stress. Posterior and anterior drawer tests were negative. Lachman's, McMurray's, patellar grind, and patellar apprehension were negative. There was crepitus anteriorly and popping with range of motion bilaterally. On repetitive motion testing, the Veteran had an increase in weakness, fatigue, and pain as repetitions continued; however, the Veteran was able to complete three repetitions of motion. X-rays showed largely symmetrical arthritic changes bilaterally, slightly more advanced on the right. In September 2012, the 2011 VA examiner wrote an addendum report in which he clarified that the knee flexion measurements as recorded in the 2011 examination report were limited due to pain, and did not change with repetition. Moreover, the VA examiner stated that the loss of motion as recorded was caused by the Veteran's lack of wanting to push beyond his set range of motion found during examination. The Veteran did not allow the examiner to actively push him beyond 115 and 110 degrees of flexion, and engaged his muscles in order to prevent the examiner from doing so. There was no further loss of motion during repeated motions. The VA examiner was unable to determine loss of motion during flare-ups of pain as the examiner said he could not be with the Veteran and measure his motion when a flare-up occurred. There was no ankylosis of either knee, no recurrent subluxation or lateral instability, no removal or dislocation of semilunar cartilage, no frequent episodes of locking, pain, or effusions in the case of dislocation, no impairment of the tibia or fibula, no malunion or nonunion, and no need for a brace. The Veteran had weakness in his muscles surrounding the knee caused by non-use, being sedentary, and the feeling of severe pain in his knees. There was no genu recurvatum. On the question of whether the Veteran is entitled to higher ratings for his knee disabilities, the Board notes that arthritis and limitation of motion, including motion limited by pain and other orthopedic factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca are to be rated as part of one disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5003. Instability of the knee, which does not include painful limitation of the knee as part of the rating criteria, is a distinct disability. See VAOPGCPREC 23-97 and 9-98. With further regard to the question of whether the Veteran is entitled to evaluations in excess of 10 percent for the bilateral knee patellofemoral arthritis and chondromalacia based on the evidence of record relevant to the rating period on appeal, outlined above, the patellofemoral arthritis and chondromalacia of the knees are rated at 10 percent under Diagnostic Code 5003, which rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5003 for bilateral knee arthritis, including the pain and limitation of motion the Veteran has reported. Diagnostic Code 5003 provides that 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 (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Here, neither the flexion nor extension measurements of either knee meet the minimum criteria for compensable evaluations under Diagnostic Codes 5260 or 5261. Flexion has been no worse than 115 degrees on the right and 110 degrees on the left. Further, because there is only one major joint involved (the knee), and there are no incapacitating exacerbations, a 10 percent rating for each knee is the maximum available schedular disability rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a. As the bilateral knee chondromalacia is already rated 10 percent disabling for each knee, and a 10 percent rating is the maximum rating provided for arthritis of a major joint under Diagnostic Code 5003, a rating in excess of 10 percent is not possible under Diagnostic Code 5003. The Board has also considered whether any other diagnostic code would allow for increased ratings for the Veteran's bilateral knee patellofemoral arthritis and chondromalacia, manifested by limitation of motion, pain, or other orthopedic factors such as weakness or fatigability. Diagnostic Code 5260 contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 60, 45, 30, and 15 degrees, disability ratings of 0, 10, 20, and 30 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had flexion to no worse than 110 degrees on the left side and 115 degrees on the right side throughout the rating period on appeal. However, as noted above, painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The 2011 VA examiner noted that the Veteran's pain began at 40 degrees of flexion bilaterally and continued to the end of the range of motion. Thus, even though no additional loss of motion was noted after repetition due to pain, weakness, or other factors, the onset of pain at 40 degrees of flexion reflects motion that is limited to that degree. Moreover, the 2011 VA examiner did note an increase in weakness, fatigue, and pain as repetitions continued. Taking the Veteran's pain into account, the evidence is at least in equipoise as to whether a rating in excess of 10 percent is warranted for the bilateral patellofemoral arthritis and chondromalacia. Specifically, the minimum criterion for the currently assigned 10 percent rating under Diagnostic Code 5260 is flexion limited to 45 degrees, while the minimum criterion for a higher 20 percent disability rating is flexion limited to 30 degrees. Thus, the Veteran's flexion limited to 40 degrees by pain is in between the two rating criteria. Resolving reasonable doubt in the Veteran's favor, the Board finds that 20 percent disability ratings are warranted for the Veteran's bilateral patellofemoral arthritis and chondromalacia. 38 C.F.R. § 4.71a. The Board has considered whether any other diagnostic codes would allow for an evaluation even higher than 20 percent. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 5, 10, 15, 20, 30 and 45 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had extension to no worse than zero degrees on both sides throughout the rating period on appeal, taking additional limitation due to pain after repetition into account. In addition, no other evidence of record shows extension measured to less than zero degrees on either side. Indeed, the Veteran's knees showed hyperextension to as much as -2 degrees on the left and -1 degree on the right. As the criteria for even a noncompensable disability rating under Diagnostic Code 5261 (limitation of extension to 5 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 20 percent under Diagnostic Code 5261 for bilateral knee patellofemoral arthritis and chondromalacia for any period. 38 C.F.R. § 4.71a. In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. The Board has also considered whether there are any diagnostic codes related to knee instability that would allow for ratings in excess of 20 percent for the bilateral knee disabilities. Under Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The Veteran has consistently reported giving way of his knees throughout the rating period on appeal. In August 2002, he stated that his knees gave out several times over a three week period after walking a lot. In October 2004, he reported occasional giving way episodes bilaterally, as well as symptoms of locking and catching in the right knee. In December 2005 and June 2011, he again reported episodes of both knees giving out. However, no ligamentous laxity has been found on examination at any time during the rating period on appeal, and ligamentous testing has been normal, with consistently negative Lachman's, anterior drawer, posterior drawer, varus, and valgus stress tests. Thus, in light of the consistently negative findings on ligament testing, the Veteran's knee instability cannot be characterized as being more than slight in severity. Therefore, Diagnostic Code 5257 does not allow for a rating in excess of 20 percent. Diagnostic Code 5259 contemplates symptomatic removal of semilunar cartilage (meniscus). A 10 percent rating is the maximum (and only) available rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a. Moreover, the evidence does not demonstrate that the Veteran has undergone such a procedure. Thus, Diagnostic Code 5259 does not allow for an evaluation in excess of 10 percent for the Veteran's bilateral knee patellofemoral arthritis and chondromalacia. Further, Diagnostic Code 5258, which contemplates dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint, does not apply. In the September 2012 addendum report, the 2011 VA examiner specifically stated there was no dislocation or removal of semilunar cartilage. Moreover, no other evidence has suggested the presence of a meniscal tear or dislocation. Further, McMurray's tests have consistently been negative. Thus, Diagnostic Code 5258 does not allow for an evaluation in excess of 20 percent for the Veteran's bilateral knee patellofemoral arthritis and chondromalacia. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. The Board has also considered whether any separate ratings are available based on the evidence. In so doing, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. In the present case, the evidence does not establish loss of extension to a even a noncompensable degree on either side; thus, assignment of separate evaluations for limitation of flexion and extension of the legs is not appropriate here. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98 (when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain). After reviewing the lay and medical evidence relevant to the rating period on appeal, the Board finds that the evidence is at least in relative equipoise as to whether separate ratings for bilateral knee instability are warranted. As described above, the Veteran reported a sensation of instability, or "giving out," of both knees throughout the rating period on appeal, although no ligament laxity was found on any examination. Resolving any doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise as to whether separate ratings of 10 percent are warranted under DC 5257 for impairment of the bilateral knees manifested by slight instability. 38 C.F.R. § 4.71a. The assignment of separate ratings for bilateral knee instability does not violate the rule against pyramiding, as the 20 percent ratings assigned herein under Diagnostic Code 5260 compensate the Veteran for entirely different symptomatology (limitation of motion due to arthritis). See 38 C.F.R. § 4.14 (2012); Esteban v. Brown, 6 Vet. App. 259 (1994). In this regard, it must be noted that not all the objective medical evidence supports the Board's determination (and, in fact, in some cases provides significant evidence against these claims) in this case. Great consideration has been given to the Veteran's lay statements, which the undersigned has reviewed and has found to be, overall, consistent, at this time. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's knee disabilities have manifested in arthritis, limitation of motion, including due to pain, and instability of the knees. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for such noncompensable limitation of motion due to painful arthritis (DC 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited due to orthopedic factors such as pain, guarding of movement, and fatigability (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the knees to the rating schedule, the degree of disability of each throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. In the absence of exceptional factors associated with the bilateral knee arthritis and instability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Because the current appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection for bilateral knee disabilities, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service records, private treatment records, VA treatment records, and other records identified by the Veteran. The Veteran has been afforded an adequate examination on the issue of rating the bilateral knee disabilities. VA provided the Veteran with examinations in August 2002, October 2004, December 2005, and June 2011, and an addendum opinion was rendered in September 2012. At the examinations, the Veteran's history was taken, and complete examinations with clinical measures were conducted, to include review of X-ray studies. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. The June 2011 VA examiner, in particular, commented in his September 2012 addendum opinion as to the effect of repetitive use and flare-ups of pain on the Veteran's functional limitations. In that regard, while he was unable to provide an opinion as to the specific amount of loss of motion during flare-ups, he provided a rationale for his inability to provide such an opinion, and further efforts to obtain this information would be futile. Therefore, the Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the June 2011 VA examination and September 2012 addendum opinion are adequate and satisfy the Board's September 2012 remand directives. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An increased evaluation of 20 percent for left knee patellofemoral arthritis and chondromalacia is granted. An increased evaluation of 20 percent for right knee patellofemoral arthritis and chondromalacia is granted. A separate 10 percent disability evaluation for instability of the left knee is granted. A separate 10 percent disability evaluation for instability of the right knee is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs