Citation Nr: 1311427 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-13 030A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial compensable rating for tension headaches from April 2, 2004 through April 4, 2012, and to a rating higher than 30 percent since April 5, 2012. 2. Entitlement to an initial rating higher than 10 percent for post-traumatic degenerative joint disease, i.e., arthritis of the left knee, in effect since June 26, 2001. 3. Entitlement to an initial rating higher than 10 percent for other left knee disability, namely, for postoperative residuals of a left knee meniscectomy also in effect since June 26, 2001, except for when the Veteran had an intervening temporary 100 percent convalescent rating for this disability under the provisions of 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran had lengthy service in the Marine Corps Reserves, including active duty for training (ACDUTRA) from May to August 1996 and active duty (AD) from January to July 1998 and from October to December 1998. This case was previously before the Board of Veterans' Appeals (Board/BVA) in February 2012, at which time it was remanded for further development. In November 2012, following the requested development, the Appeals Management Center (AMC) in Washington, DC, increased the rating for the Veteran's tension headaches from 0 percent (i.e., noncompensable) to 30 percent effective April 5, 2012. However, because that was not a full grant of this claim, there remains for consideration whether he was entitled to a compensable rating for this disability prior to April 5, 2012, and whether he has been entitled to a rating higher than 30 percent since. AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed he is seeking the highest possible rating for this service-connected disability for all time periods at issue, unless he expressly indicates otherwise). In November 2012, the AMC also confirmed and continued the initial 10 percent ratings for the service-connected degenerative joint disease of his left knee and for the other post-operative residuals of his left knee meniscectomy. So these other claims also are still at issue. FINDINGS OF FACT 1. From April 2, 2004 through April 4, 2012, the Veteran reportedly had headaches approximately once a week that were nonprostrating in nature and that did not have an adverse impact on his employment. 2. Since April 5, 2012, he has had two to three migraine headaches a month that reportedly are prostrating in nature but not productive of severe economic inadaptability. 3. Since service connection became effective on June 26, 2001, the degenerative joint disease of his left knee has been manifested by tenderness to palpation, crepitance, flexion to at least 115 degrees, and extension to 0 degrees even when considering his arthritic pain. 4. Since service connection became effective on June 26, 2001, the post-operative residuals of his left knee meniscectomy have included a well-healed scar that is not painful or unstable and covers less than 6 square inches in area. CONCLUSIONS OF LAW 1. From April 2, 2004 through April 4, 2012, the criteria were not met for an initial compensable rating for the tension headaches. 38 U.S.C.A. §§ 1155, 5103. 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. Since April 5, 2012, the criteria have not been met for a rating higher than 30 percent for these tension headaches. 38 U.S.C.A. §§ 1155, 5103. 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2012). 3. Since service connection became effective on June 26, 2001, the criteria have not been met for an initial rating higher than 10 percent for the degenerative joint disease of the left knee. 38 U.S.C.A. §§ 1155, 5103. 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 4. Since service connection became effective on June 26, 2001, the criteria also have not been met for an initial rating higher than 10 percent for the post-operative residuals of the left knee meniscectomy, except for when the Veteran had a temporary 100 percent convalescent rating for this disability under the provisions of 38 C.F.R. § 4.30. 38 U.S.C.A. §§ 1155, 5103. 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Prior to considering the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory and regulatory duties to notify and assist him in developing his claims. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met these obligations. When, as here, the claims arose in the context of the Veteran trying to establish his underlying entitlement to service connection for these disabilities, Veterans Claims Assistance Act (VCAA) notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform him of the information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf. A regulatory amendment effective for claims, as here, pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claims. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR § 3.159(b)(1) (2012). The notice also, ideally, should address all five elements of the claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice should include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Also, ideally, this VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason this notice was not provided prior to initially adjudicating the claim or, if provided, it was inadequate or incomplete, this timing error in the provision of this notice can be effectively rectified ("cured") by providing all necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Moreover, when, as here, the initial underlying claim of entitlement to service connection since has been granted, and the Veteran in turn has appealed a "downstream" issue such as the compensation level assigned for his disability (i.e., for a higher initial rating for the disability), VA does not have to provide him additional VCAA notice concerning this "downstream" element of his claim. The claim as it arose in its initial context has been substantiated since granted. Thus, § 5103(a) notice is no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And the RO provided the Veteran this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning higher initial ratings. He therefore has received all required notice concerning his claims. In a June 2004 rating action, the RO granted his claims of entitlement to service connection for the post-operative residuals of a left knee meniscectomy and for degenerative joint disease, each evaluated as 10-percent disabling retroactively effective from June 26, 2001, the date of receipt of these claims. The RO also granted entitlement to service connection for tension headaches and assigned a 0 percent (noncompensable) rating retroactively effective from April 2, 2004. The Veteran disagreed with those ratings, and this appeal ensued. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran timely appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others.). During the course of this appeal for higher initial ratings for these disabilities, VA notified him of the information and evidence necessary to substantiate and complete his claims. VA informed him that, in order to establish his entitlement to an increased rating for a service-connected disability, the evidence had to show the disability had worsened and the manner in which such worsening had affected his employment and daily life. 38 U.S.C.A. § 5103(a). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling the lower Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (concluding that "generic" notice in response to a claim for an increased rating is all that is required, not also notice of specific diagnostic codes (DCs), etc.). VA also fulfilled its duty to assist the Veteran in obtaining identified and available evidence necessary to substantiate his claims. To this end, VA obtained or ensured the presence of records and reports reflecting his treatment by or through VA from June 2001 through July 2009, as well as records and reports reflecting his treatment by or through the following private health care providers: the Memorial Medical Center in January 2002, the Touro Ambulatory Surgery Center in January and February 2009, and Orthopaedic Associates of New Orleans from January 2009 to June 2010. As well, there is a transcript of the December 2004 hearing he had at the RO before a local Decision Review Officer (DRO). In April and June 2004, April 2007, October 2008, April and May 2009, and April 2012, VA examined the Veteran, in part, to determine the extent of impairment attributable to his service-connected tension headaches and left knee disabilities. The VA examination reports show the examiners interviewed and examined him, documented his medical conditions, and rendered appropriate diagnoses and opinions consistent with the other evidence of record and the applicable rating criteria. In October 2008 and April 2012, the VA examiners also reviewed his claims file for the history of these disabilities. Therefore, the Board concludes that, taken together, the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). Finally, VA scheduled the Veteran for a June 2010 videoconference hearing before a Veterans Law Judge of the Board. However, the Veteran canceled the hearing and has not requested that it be rescheduled. Therefore, the Board will consider his appeal on the basis of the evidence already on file. In sum, he has been afforded a meaningful opportunity to participate effectively in the development of his appeal. He has not identified any outstanding evidence that could support his claims; and there is no evidence of any prejudicial VA error in notifying or assisting him with these claims or that could otherwise affect the essential fairness of the adjudication of these claims. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran contends that the ratings for his tension headaches and left knee disabilities do not adequately reflect the level of impairment caused by these disabilities. Therefore, he maintains that higher ratings are warranted. After carefully considering these claims in light of the record and applicable law, however, the Board finds that the preponderance of the evidence is against these claims, so they must be denied. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civilian occupations resulting from service-connected disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 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). 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). However, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. This, in turn, requires that VA "stage" the rating to compensate him for this variance. See Fenderson, 12 Vet. App. at 125-26. Indeed, the Court since has held VA must employ this practice even to claims that do not involve initial ratings, but also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the April 2004 rating decision from which this appeal ensued, the RO granted service connection for the Veteran's left knee disabilities and assigned 10 percent ratings retroactively effective from June 26, 2001. The RO also granted entitlement to service connection for tension headaches and assigned a noncompensable rating retroactively effective from April 2, 2004. In view of these effective dates for these awards, the Board has considered all relevant medical and other records concerning the status of these disabilities during the years since. Tension Headaches The Veteran's service-connected tension headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A lesser 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. And a noncompensable rating is warranted for less frequent attacks. During VA treatment from July 2004 through May 2009, the Veteran reported that he was having headaches as frequently as once a week. In September 2004, he was prescribed Zomig. Despite the reported frequency, there was no evidence his headaches were prostrating in nature. Moreover, the records only substantiate treatment for an active headache in March and July 2005. In March 2005, he was given injections for pain and nausea, and in July 2005 he was offered an injection for pain but refused. The treatment records also do not mention that his headaches had any impact on his work. During VA examinations in June 2004 and April 2007, he reported that he was having headaches once or twice a week. It was noted that he had been prescribed various medications without relief. However, the examinations were unremarkable for any indication his headaches were prostrating in nature. Although the April 2007 examiner opined that the Veteran's headaches would have an adverse impact on the performance of his daily activities, such as chores, shopping, recreation, and participation in sports, this examiner also stated they would not significantly affect the Veteran's occupation. Absent findings that the Veteran's headaches were prostrating in nature or that they significantly affected his occupation or employment, the Board concludes that from the time service connection became effective on April 2, 2004 through April 4, 2012, the headaches did not meet the criteria for an initial compensable rating. Accordingly, a higher rating for this initial time frame is not warranted, and the initial noncompensable rating confirmed and continued. During his April 2012 VA examination, the Veteran reported that he was having 2 to 3 headaches per month. But the preponderance of the competent evidence of record is against a finding that they have caused severe economic inadaptability. He is a firefighter and emergency medical technician. Although he states that he has had to leave work in the past, he reports that he does not like to do so. Moreover, despite VA's March 2006 notice informing him of the potential importance of employment records indicating time lost from his job, he has submitted no evidence substantiating the number of times he has left work on account of his headaches or providing indication of some other way they are impairing his job performance. In addition, the report of the April 2012 VA examination shows he is able to work what amounts to two jobs and that he has not missed any full days from work or any callouts as firefighter. Hence, the preponderance of the competent evidence of record shows that since April 5, 2012, his tension headaches have not been causative of severe economic inadaptability. In this regard, it must be emphasized that, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. This is especially true when the Veteran has a rating that is in the higher end of the rating spectrum for that particular disability. For these reasons and bases, the Board finds that the Veteran's tension headaches do not meet or more nearly approximate the criteria for a rating higher than 30 percent. Accordingly, an increased rating is not warranted, and this portion of the appeal of this claim also is denied. The Left Knee The Veteran also is claiming entitlement to initial ratings higher than 10 percent for the degenerative joint disease (arthritis) of his left knee and for the post-operative residuals of his left knee meniscectomy. These separate ratings for this same knee are means of compensating him for the entirety of his disability and do not violate VA's anti-pyramiding regulation, 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 1998). VA's General Counsel also has held that separate ratings under 38 C.F.R. § 4.71a , DC 5260 (limitation of flexion of the leg) and under DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September, 2004). The degenerative joint disease component of this left knee disability is rated as arthritis due to trauma. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Arthritis due to trauma is rated as degenerative arthritis under DC 5003. Degenerative arthritis, established by X-ray findings, in turn is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, which, here, since the knee, are DCs 5260 and 5261. According to DCs 5260 and 5261, a 10 percent rating is warranted when flexion is limited to 45 degrees or when extension is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. Provided that the degree of disability is compensable under each set of criteria, separate ratings may be assigned in cases where a service-connected knee disability includes both limitation of flexion under Diagnostic Code 5260 and limitation of extension under Diagnostic Code 5261. VAOPGC 9-04. With any form of arthritis, painful motion is an important factor of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In this particular case at hand, the Veteran's records concerning his evaluation and treatment by VA and private health care providers from June 2001 through April 2009 and the reports of his examinations in April 2004, October 2008, April 2009, and April 2012 show that his left knee disability has been manifested primarily by pain on palpation and crepitance. X-rays show no more than mild degenerative joint disease, and the VA examination reports concur that he is able to extend his knee fully to zero degrees, and that he is able to flex his knee to at least 115 degrees (October 2008 VA examination report). Normal range of motion of the knee is to from 0 degrees of extension and to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. So he continues to have entirely normal extension of this knee, to 0 degrees, therefore is not entitled to a higher rating under DC 5261. And although his flexion has been shown to be restricted to as much as to 115 degrees, this still far exceeds the requirement that flexion be restricted to no more than 60 degrees to receive even the most minimum 0 percent rating under DC 5260, much less a 10 percent or greater rating. Moreover, the preponderance of the VA examinations shows that repetitive testing produces no additional limitation of motion. Both of these ranges of motion are noncompensable under DCs 5260 and 5261 and, therefore, do not warrant separate evaluations for flexion and extension. In addition, his lower extremity strength is normal at 5/5, bilaterally, and he does not demonstrate a lack of normal left knee endurance, incoordination, or functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40; DeLuca. While the reports of the August 2008 and April 2009 examinations suggest his left knee disability affects the performance of his usual daily activities and ability to work, he continues to hold what amounts to two jobs. Although he has testified that he misses work due to his left knee disability, he says he does not actually tell his employer for fear that he will lose his job. Presumably, then, these absences, if indeed attributable to his left knee disability, are not objectively documented. He further testified that, because he has not told his employer, no on-the-job concessions have been made for his left knee disability. He cannot have it both ways, however, either this disability is adversely affecting his work or it is not. As it stands, he is essentially presenting himself to his employer as fit for his occupation, while at the same time presenting himself to VA as disabled for the purpose of receiving additional VA benefits and compensation. Such conflicting testimony combined with the fact that he has not submitted any employment records or other corroborating evidence tending to substantiate any impact on his employment leads the Board to conclude that his testimony is not credible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence). As such, his lay testimony concerning this has no ultimate probative value. For these reasons and bases, the Board finds that the degenerative joint disease component of the Veteran's left knee disability does not meet the criteria for a rating higher 10 percent. As such an increased initial rating is not warranted, and the current 10 percent rating is confirmed and continued. As for his claim of entitlement to an initial rating higher than 10 percent for the other component of his left knee disability, namely, the post-operative residuals of the left knee meniscectomy, he is not entitled to an initial rating higher than 10 percent for this either. This component of the disability is rated as symptomatic residuals of the removal of the semilunar cartilage under 38 C.F.R. § 4.71a, DC 5259. The currently assigned 10 percent rating is the highest and indeed only rating available under this DC. Therefore, the Veteran's representative requests that the Board also consider the possibility of rating this component of the disability under different DCs. The Board's choice of DC should be upheld if supported by explanation and evidence. See Butts v. Brown, 5 Vet. App. 532, 539 (1993). Any change in DC must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Also potentially applicable is DC 5258, allowing for a higher 20 percent rating if there is dislocation of the semilunar cartilage with frequent episodes of locking pain and effusion into the joint. Also potentially applicable is DC 5257, which considers "other" knee impairment, namely, recurrent subluxation or lateral instability. A 10 percent rating is warranted if there is consequent slight knee impairment, whereas a 20 percent rating requires moderate impairment and a 30 percent rating severe impairment. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a 0-percent rating. Subsequently, in VAOPGCPREC 9-98 (August 14, 1998), the General Counsel further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In addition, the Board has considered the possibility of rating the Veteran's surgical scars. Scars (other than those involving the head, face, or neck) that are deep or that cause limited motion warrant the following ratings: 10 percent for an area or areas exceeding 6 square inches (39 sq. cm.); 20 percent for area or areas exceeding 12 square inches (77 sq. cm.). 88 C.F.R. § 4.118, DC 7801, Note (1). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (2). A 10 percent rating also is warranted for scars (other than those on the head, face, or neck) that are superficial and that do not cause limited motion, provided that they cover an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (2). A 10 percent rating is warranted as well for scars which are superficial and unstable. 38 C.F.R. § 4.118, DC 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7803, Note (1). A superficial scar is one not associated with underlying soft tissue damage. A 10 percent rating is warranted for a superficial scar that is painful on examination. 38 C.F.R. § 4.118, DC 7804. Other scars are rated base on the limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805. In 2008, VA again clarified its regulations for rating scars. Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54708 (2008) (codified as revised at 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2009)). However, those revisions are applicable only claims for benefits received by VA on or after October 23, 2008. Inasmuch as the Veteran's claim was received prior to October 23, 2008, those revisions are inapplicable to this present appeal and resultantly will not be discussed. The Veteran as mentioned complains of pain in his left knee. However, there is no suggestion he has dislocation of the semilunar cartilage with frequent episodes of locking pain and effusion into the joint. Although a February 2009 VA outpatient treatment assessment shows he is at a high risk for falls, the VA examination reports show that his is left knee is stable to lateral motion and to anterior and posterior motion. The knee therefore has not been shown to be unstable as to in turn warrant assigning a separate rating for this, that is, apart from the rating for the arthritis. See again VAOGCPRECs 23-97 and 9-98. To the contrary, the preponderance of the evidence shows that he walks with a normal gait without the aid of a cane, crutches, walker, or wheelchair and that, generally, he does not wear a brace. In addition, there is no evidence of ankylosis, deformity, misalignment, or malunion or nonunion of the tibia or fibula tending to suggest application of other DCs (5256, 5262, etc.) is warranted. Ankylosis, as an example, is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. This clearly is not the situation here, however, since the mere fact that the Veteran continues to have range of motion in his knee on both flexion and extension, indeed, entirely normal extension and, although less than normal flexion, still far exceeding that required for even the most minimum 0 percent rating, in turn means that, by definition, his knee is not ankylosed. Moreover, the most recent VA examination shows that his surgical scars are stable and cover an area less than 6 square inches. In sum, then, he does not meet or more nearly approximate the schedular criteria for higher rating under any potentially applicable DC. Accordingly, his claims for initial ratings higher than 10 percent must be denied. Extra-schedular Considerations The Board additionally has considered the possibility of referring this case to the Director of the Compensation and Pension Service for potential approval of an extra-schedular rating for the Veteran's service-connected tension headaches and left knee disabilities. 38 C.F.R. § 3.321(b)(1) (2012). Since the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). But in exceptional situations when the rating is inadequate, it may be appropriate to refer the case for extra-schedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). There is a three-step inquiry for determining whether a claimant is entitled to an extra-schedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare 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. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran'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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Here, though, neither the Veteran nor his representative has expressly raised the matter of entitlement to an extra-schedular rating, and this referral also is not otherwise shown to be warranted. The Veteran's contentions have been limited to those discussed, i.e., that his disabilities are more severe than is reflected by the currently assigned schedular ratings. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria set forth in the relevant diagnostic codes contemplate his contentions with respect to the frequency and duration of his tension headaches, whether they are prostrating in nature, and the effect they have on his ability to make a living. With respect to his left knee disability, they consider his consequent pain, limitation of motion, stability, recurrent dislocation, subluxation, malunion/nonunion of the tibia and fibula, ankylosis, and misalignment, etc. In short, he does not have symptoms associated with his tension headaches or left knee disabilities that have been left uncompensated or unaccounted for by the schedular ratings already in effect. Thun, 22 Vet. App. at 115. Accordingly, there is not the required suggestion these disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) (2012). See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim of entitlement to an initial compensable rating for the tension headaches from April 2, 2004 through April 4, 2012, is denied. The claim of entitlement to a rating higher than 30 percent for the tension headaches since April 5, 2012, also is denied. The claim of entitlement to an initial rating higher than 10 percent for the degenerative joint disease of the left knee is denied. The claim of entitlement to an initial rating higher than 10 percent for the postoperative residuals of the left knee meniscectomy also is denied. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs