Citation Nr: 1311735 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 07-10 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease of the left knee, status post arthroscopic partial medial meniscectomy (left knee disability), currently evaluated at 10 percent disabling. 2. Entitlement to an increased rating for severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable anterior cruciate ligament (ACL) rupture, and avascular necrosis of the weight bearing surface of the lateral tibial plateau (right knee disability), currently evaluated at 40 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1979 to December 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions in July 2001 and June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran perfected a timely substantive appeal in October 2002 concerning the issue of entitlement to an increased rating for a right knee disability (characterized as degenerative joint disease of the right knee), evaluated at 20 percent disabling, effective from May 31, 2001. See July 2001 Rating Decision; July 2002 Notice of Disagreement; August 2002 Statement of the Case; and October 2002 VA Form 9. In a February 2003 rating decision, the RO re-characterized the Veteran's right knee disability (as severe degenerative arthritis of the right knee with lateral and medial fragmentations, questionable ACL rupture, and avascular necrosis with weight bearing surface of the lateral tibial plateau) and increased the disability rating from 20 percent to 30 percent disabling, effective from May 31, 2001. In an August 2004 rating decision, the RO increased the rating for the Veteran's right knee disability from 30 percent to 40 percent disabling, effective from May 31, 2001. Since the 40 percent rating is not the highest rating assignable for the right knee disability, and since the Veteran is presumed to be seeking the maximum available benefit for a given disability, the issue of entitlement to an increased rating for the right knee disability remains on appeal. AB. v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran perfected a timely substantive appeal in February 2007 concerning the issue of entitlement to an increased rating for degenerative joint disease of the left knee, status post arthroscopic partial medial meniscectomy, currently evaluated at 10 percent disabling. See June 2005 Rating Decision; June 2005 Notice of Disagreement; November 2006 Statement of the Case; December 2006 Supplemental Statement of the Case; and February 2007 VA Form 9. In December 2010, the Board remanded the issues concerning the service-connected right and left knee disabilities for corrective action and for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives because the Board directed the AOJ: (1) to send the Veteran and his representative a VCAA letter addressing the notice requirements under Dingess v. Nicholson, 19 Vet. App. 473 (2006), which was accomplished in December 2010; (2) to schedule the Veteran for an updated VA examination, which also occurred in December 2010; and (3) to furnish the Veteran and his representative a Supplement Statement of the Case addressing the evidence on file since the March 2009 Supplemental Statement of the Case, which was accomplished in February 2012. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran's degenerative joint disease of the left knee with status post arthroscopic partial medial meniscectomy results in painful and limited left knee motion, which is objectively confirmed by findings of an antalgic gait, pain, tenderness, swelling and guarding of movement of the left knee; and results in slight recurrent subluxation and instability with crepitus and grinding in the left knee. 2. The Veteran's severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable ACL rupture, and avascular necrosis of weight bearing surface of the lateral tibial plateau, result in loose motion of the right knee including instability and/or subluxation requiring the use a brace; and result in painful right knee motion with extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee, status post arthroscopic partial medial meniscectomy, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.16, 4.71a, Diagnostic Codes 5003, 5010-5260, 5261 (2012). 2. The criteria for a separate 10 percent rating for slight recurrent subluxation of the left knee, as a residual of status post arthroscopic partial medial meniscectomy, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.14, 4.16, 4.71a, Diagnostic Code 5257 (2012). 3. The criteria for a disability rating in excess of 40 percent for severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable ACL rupture, and avascular necrosis of weight bearing surface of the lateral tibial plateau, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.40. 4.45, 4.14, 4.16, 4.71a, Diagnostic Codes 5010-5262 (2012). 4. The criteria for a separate 10 percent rating for painful right knee motion with extension limited to 10 degrees (as a residual of severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable ACL rupture, and avascular necrosis of weight bearing surface of the lateral tibial plateau), have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.40. 4.45, 4.14, 4.16, 4.71a, Diagnostic Code 5010-5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). In a claim for an increased evaluation, the VCAA requires generic notice, that is, namely, information sent to the Veteran indicating that he or she must submit evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2008 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records, post-service VA, and private medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA records have been reviewed. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a) , § 5103A, or 38 C.F.R. § 3.159 , and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Increased Ratings The Veteran seeks increased ratings for his right and left knee disabilities. He asserts his disabilities are more severe than what their current ratings represent. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Pursuant to Diagnostic Code 5010, arthritis due to trauma is rated as degenerative arthritis under Diagnostic Code 5003. Under this code, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic 5003; see also 38 C.F.R. § 4.59; Hicks v. Brown, 8 Vet. App. 417, 420 (1995) (citing Litchenfels v. Derwinski, 1 Vet. App. 484, 488 (1991)). Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, the General Counsel stated that if a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Rating the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A. Degenerative Joint Disease of the Left Knee, Status Post Arthroscopic Partial Medial Meniscectomy On January 6, 2005, the Veteran underwent surgery on his left knee. In a June 2005 rating decision, a temporary total (100 percent) rating was assigned pursuant to 38 C.F.R. § 4.30, due to surgery which necessitated convalescence, effective from January 6, 2005, with a 10 percent schedular rating to be restored on March 1, 2005. The Veteran asserts his left knee disability is more disabling than what is represented by the current 10 percent rating. The Veteran was afforded a VA examination in May 2005. The Veteran reported pain and swelling in his left knee since 2001. The examiner noted that in January 2005 he had a partial meniscectomy, where he was also incidentally noted to have pre-existing medial compartment arthritis. The Veteran reported that his left knee aches constantly and has weakness and stiffness. He denied swelling, locking, heat, or redness. The Veteran stated that his left knee has instability when getting up from a sitting position and has fatigability if going up or down stairs. He also reported that his knee pops a lot. The Veteran reported flare-ups, where the pain will increase, and last several hours. There were no reported dislocations or subluxation. Examination revealed tenderness on palpation with an antalgic gait. No swelling was noted. Flexion was zero to 80 degrees with pain, and after fatigue, flexion was zero to 75 degrees, with pain. Extension was noted to be to 180 degrees. Medial and lateral collateral ligaments, varus/valgus, were stable. Anterior and cruciate ligaments were also stable. X-rays demonstrated osteoarthritis of the lateral and medial knee joints. Degenerative arthritis was seen in the patellofemoral joint. The examiner noted that there was no change in function following repetitive use; however, there was a slight decrease in flexion after fatiguing. A magnetic resonance image (MRI) taken in October 2006 demonstrated an abnormal body of posterior horn of the medial meniscus with abnormal signal reaching the superior surface. The physician stated that he was uncertain if this was related to the recent meniscal tear or more likely related to the previous meniscal tear and surgery. The physician stated there was medial subluxation of the body of the medial meniscus. The MRI also demonstrated significant cartilage loss and bony productive changes involving all three joint spaces, greater involving the medial joint space, but significantly involving the lateral joint space and patellofemoral joint. A miniscule Baker cyst was also noted. Private treatment notes from January 2007 indicate the Veteran had a small effusion of the left knee, and received injections for treatment. VA treatment notes from April 2007 indicate the Veteran received injections for his left knee pain. In December 2007, it was noted that a brace was helping his knee. The Veteran was afforded a VA examination in May 2008. He reported pain, stiffness, weakness, incoordination, decreased speed of joint motion and swelling and popping of the knee joint. He did not report giving way, instability, deformity, or locking episodes. The Veteran reported using a brace. Examination revealed crepitus, tenderness, and guarding of movement. There was mild tenderness to palpation medial to patella with mild guarding. There was no grinding, instability, patellar abnormality, meniscus abnormality, or abnormal tendons. Flexion was zero to 100 degrees with pain, and extension was zero degrees. The examiner noted objective evidence of pain following repetitive motion but no additional limitations after three repetitions. There was no joint ankylosis. X-rays demonstrated mild to moderate osteoarthritis of the left knee. The examiner diagnosed the Veteran with mild to moderate left knee degenerative joint disease. The Veteran was afforded a VA examination in December 2010. He reported that his knee had pain, stiffness, weakness, and symptoms of inflammation. He reported being able to stand three to eight hours, with short rest periods and ability to walk a quarter of a mile. He stated he uses braces constantly. Examination revealed the Veteran had a mild limp. Examination revealed the Veteran had a flexion of zero to 130 degrees with no objective evidence of pain and a left knee extension to zero degrees. There was noted objective evidence of pain following repetitive motion. The Veteran had a negative McMurray and drawer sign. There was no effusion noted, but there was mild lateral grinding. The examiner noted no laxity or lateral instability of the left knee. The examiner stated that a conclusion could not be drawn as to why the Veteran's physician in October 2006 demonstrated findings of a positive McMurray's sign. The examiner stated the test was performed three times and speculated that the level of medial meniscal subluxation found in October 2006 was not significant enough to produce a positive McMurray sign. In reviewing the record evidence, the clinical data include reports of VA x-ray studies dated in May of 2005 and 2008. These reports disclose x-ray findings of mild to moderate osteoarthritis of the left knee. The record indicates that the Veteran has limited motion on flexion of the left knee, as a normal range of motion in that plane measures to 140 degrees. 38 C.F.R. § 4.71, Plate II (Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion). Here, the Veteran complains of pain, swelling, and stiffness of the left knee. On VA and private physical examinations dated between 2005 and 2010, the Veteran walked with an antalgic gait and was found to have pain, effusion, tenderness to palpation, and guarding of movement of his left knee joint. Similarly, the Veteran demonstrated, at worst, limited left knee motion with pain occurring on flexion at 80 degrees, and with additional limitation of motion occurring on flexion at 75 degrees after fatigue. (Compare VA Examination Report dated May 2005, with VA Examination Reports dated in May 2008 and December 2010). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provision of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. While the examiner did specify the point at which pain began during range of motion testing, the other examiners found no additional limitations below 100 degrees of flexion (or below 130 degrees of flexion) following repetitive motion on examinations in May 2008 and December 2010, respectively. This evidence is consistent with a finding of limitation of left knee motion that is objectively confirmed by findings such as an antalgic gait, pain, swelling, tenderness, and guarding of movement and would support the Veteran's contention of painful motion on use of his left knee. Hence, the objective evidence as discussed above shows flexion limited to 75 degrees, at worst, due to pain and would squarely meet the criteria for a 10 percent rating under DC 5010-5003 (which contemplate the criteria at DCs 5260 and 5261) and 38 C.F.R. § 4.59. See Hicks and Lichtenfels, both supra. In reaching this determination, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of knee pain, weakness, and stiffness. These complaints are well documented in the Veteran's written statements and treatment records. To receive a compensable rating under Diagnostic Code 5260, limitation of flexion must be actually or functionally limited to 45 degrees. However, even taking into consideration the painful movement, evidence demonstrates the Veteran's flexion was limited to no more than 75 degrees (see May 2005 VA examination) and his extension was limited to no more than 0 degrees. Therefore, even if pain is taken into consideration, an increased rating under Diagnostic Code 5260 and 5261 is not warranted. Moreover, as the evidence of record shows no finding of ankylosis, an increased rating under Diagnostic Code 5256 is likewise not warranted. Diagnostic Code 5257 rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of the joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Veteran has stated that his left knee has been weak and unstable. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). A private October 2006 MRI indicated subluxation. Although the December 2010 VA examiner explained that the MRI findings were not significant enough to produce a positive McMurray's test, nevertheless, the MRI is indicative of subluxation; and mild lateral grinding and crepitus were detected on VA examination in 2008 and 2010. Based on the totality of the evidence, the Board finds that the Veteran clearly suffers from weakness of the left knee ligaments which is due to subluxation, and explains the Veteran's complaints of weakness and instability. As such, the Board finds the Veteran is entitled to a separate rating of 10 percent for slight, recurrent subluxation of the left knee. A rating higher than 10 percent is not warranted as the subluxation was not moderate or severe enough to produce findings of ligament instability during VA examinations. A 10 percent rating under Diagnostic Code 5259 is warranted when there is removal of semilunar cartilage, symptomatic. As previously stated, in January 2005, the Veteran had a partial meniscectomy; and a private October MRI was interpreted as showing significant cartilage loss. Upon VA examinations in 2005 and 2008, the Veteran walked with an antalgic gait and showed mild guarding of movement. Mild lateral grinding was detected on VA examination in 2010. Here, the Board notes that these symptoms of an antalgic gait, grinding, and guarding of movement are already considered in the currently assigned Diagnostic Codes for arthritis and subluxation (Diagnostic Codes 5010 and 5257). As such, a separate rating under Diagnostic Code 5259 is not warranted as the symptoms resulting from cartilage loss have already been addressed in the currently applied Diagnostic Codes. In summary, the Board finds the Veteran's symptoms are appropriately rated by the current 10 percent rating, based on degenerative arthritis confirmed by x-ray and by objective evidence of an antalgic gait, swelling, painful motion, and guarding of movement under Diagnostic Code 5003-5010, and a separate rating of 10 percent based on slight, subluxation and instability with objective evidence of crepitus and mild lateral grinding on use of left knee under Diagnostic Code 5257. The Board notes that in combination, these Diagnostic Codes take all of the Veteran's symptoms into consideration. Diagnostic Code 5010-5003 appropriately addresses the Veteran's symptoms productive of painful and limitation of motion, while Diagnostic Code 5257 compensates the Veteran for his subluxation and instability including grinding and crepitus. Therefore, in assigning the separate rating herein, the Veteran's left knee disability results in a combined rating of 20 percent (combining the 10 percent under Diagnostic Code 5010-5003 and 10 percent under Diagnostic Code 5257). See Combined Ratings Table, 38 C.F.R. § 4.25. As the evidence presented adequately spoke to the diagnostic criteria of 5010-5003 and 5257; and as the Board's decision to assign a separate 10 percent rating for slight subluxation and instability of the left knee in addition to the 10 percent rating already in effect for painful and limited left knee motion, results in a favorable outcome of the Veteran's left knee claim, the Board concludes that the Veteran has not been prejudiced by this action. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). B. Severe Degenerative Arthritis of the Right Knee with Lateral and Medial Meniscus Fragmentation, Questionable ACL Rupture, and Avascular Necrosis of Weight Bearing Surface of the Lateral Tibial Plateau The Veteran submitted a claim for an increased rating in May 31, 2001. In an August 2004 rating decision, the Veteran's right knee disability was awarded a 40 percent rating, effective May 31, 2001. The Veteran asserts his disability is more disabling than what is represented by a 40 percent rating. The Veteran was afforded a VA examination in May 2001. He stated the right knee continues to swell and have sharp, aching pain. The Veteran reported that his knee is weak, stiff, and that it has instability, giving way, occasional locking, fatigueability, and lack of endurance. Examination revealed a gait with a limp on the right leg. The examiner noted the Veteran walked on his toes and outsides of his feet with pain in the right knee. The knee was swollen with deformity and crepitus but there was no laxity or tenderness. The Veteran's range of motion was tested three times. The first time, his extension was 10 degrees and flexion was to 132 degrees. Second, his extension was 8 degrees and flexion was 135 degrees. And third, his extension was 15 degrees and flexion was 122 degrees. All ranges of motion were painful. X-rays demonstrated degenerative joint disease changes. VA treatment records for the period of May 2001 to July 2002 and private records from June 2002 to September 2002 were reviewed. VA outpatient records indicate the Veteran sought treatment in July 2002 for pain in the right knee. It was noted that range of motion was full and muscle power was full. Crepitation at the knee joint was noted and the Veteran was diagnosed with osteoarthritis of the right knee, low grade. He was treated with an injection to the knee. An MRI from September 2002 demonstrated torn medial and lateral cartilage of the right knee with free bodies. It was noted that the Veteran would need arthroscopic surgery to clean out the joint. The Veteran was afforded a VA examination in December 2002. It was noted that the Veteran had instability or giving way of the right knee as well as locking. Physical examination revealed deformity of the right knee with swelling but no laxity. There was crepitus. The Veteran had 12 degrees of extension actively, 10 degrees passively and 10 degrees after fatiguing, all with pain. Flexion was to 120 degrees actively, 125 degrees passively and 127 degrees after fatiguing, all with pain. The Veteran was diagnosed with severe degenerative joint disease of the right knee with lateral and medial meniscus fragmentation, probably chronic ACL rupture, and avascular necrosis involving the weight-bearing surface of the lateral tibial plateau. VA treatment records from August 2003 to March 2008 were reviewed. In August 2003, it was noted that the right knee had more valgus than the left, which correlated with the x-ray finding of lateral compartment disease. VA outpatient records indicate that in April 2004 the Veteran's right knee extension was limited 5 percent. It was noted that the Veteran would benefit from the use of neoprene braces for work activities. In December 2004, the Veteran reported that he had knee pain but wearing a brace on his right knee helped keep his knee from popping out of joint. In 2005, the Veteran underwent surgery on his left knee; much of the treatment records during this time pertained to his left knee. In June 2006, x-rays demonstrated degenerative changes of the knee and steroid injections were suggested. In July 2006, the Veteran received Euflexa injections to the right knee. In September 2007, it was noted that the Veteran finished a series of Euflexa injections to the right knee, and that the shots did seem to keep him going at his job. It was noted that the Veteran was a candidate for a total knee replacement; however, he did not want to take time off for the replacement. Examination revealed the right knee was without effusion. Injections for the right knee were scheduled again. In December 2007, the Veteran received an injection to the right knee. There was +1 infusion on the right knee and it was painful with weight bearing. The Veteran was afforded a VA examination in May 2008, primarily for his left knee. However, it was noted that he wore a neoprene brace on his right knee and x-rays demonstrated mild degenerative osteoarthritis of the right knee. In July 2009, the Veteran received injections to his right knee again. It was noted there was no heat, swelling, or effusion. The Veteran was afforded a VA examination in December 2010. He reported that his knee had pain, stiffness, weakness, and symptoms of inflammation. He reported being able to stand three to eight hours, with short rest periods and ability to walk a quarter of a mile. He stated he uses braces constantly. Examination revealed the Veteran had a mild limp. Examination revealed the Veteran had a flexion of zero to 125 degrees with objective evidence of pain and extension to zero degrees. There was noted objective evidence of pain following repetitive motion. The Veteran had a negative McMurray and drawer sign. There was no effusion noted, but there was lateral grinding. There was no instability, patellar abnormality, or meniscus abnormality noted. The examiner noted that the knee joint was very tight with no instability. An x-ray from May 2011 demonstrated advanced degenerative joint disease of the right knee, and the physician noted that the disease had progressed since the examination in May 2008. In June 2011, the Veteran received additional injections in the right knee. In February 2012, the Veteran sought treatment for knee pain. It was noted that he worked for the Postal Department and continues to walk his route. Both knees fully extended and x-rays demonstrated severe lateral compartment disease of the right knee. The Veteran is currently rated 40 percent disabled, pursuant to Diagnostic Code 5010-5262. As explained previously, the hyphenated diagnostic code in this case indicates that arthritis due to trauma under Diagnostic Code 5010 is the service-connected disorder and that nonunion and loose motion of the tibia and fibula requiring a brace under Diagnostic Code 5262 is a residual condition. The Board notes that the Veteran has not been diagnosed with nonunion and loose motion of the tibia and fibula. However, there is no Diagnostic Code that pertains specifically to the Veteran's diagnosed right knee disability. As such, the Veteran is rated analogously to Diagnostic Code 5262, based on the totality of his symptoms, including instability and using a hinged brace for his right knee. First, the Board notes that Diagnostic Code 5256 is not applicable, as the evidence does not indicate the Veteran has ankylosis of the right knee. A rating under Diagnostic Codes 5257, 5258, 5259, or 5263 is not appropriate, as the Veteran does not exhibit symptoms of genu recurvatum or removal of semilunar, symptomatic cartilage. Furthermore, the Board finds that the symptoms described by Diagnostic Codes 5257, 5258 and 5259, are already addressed by the Veteran's currently assigned rating under Diagnostic Code 5262 (instability, locking and subluxation, pain and effusion). As such, a rating under these codes is not appropriate, as it would result in pyramiding. Under Diagnostic Code 5260, a 10 percent rating is warranted for limitation of flexion to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. However, a separate rating for limitation of flexion, under Diagnostic Code 5260, is also not warranted, as there is no evidence of record that the Veteran's flexion was limited to 45 degrees or more at any time. Under Diagnostic Code 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Here, the Board finds the Veteran is entitled to a separate rating of 10 percent based on limitation of extension to 10 degrees. During the VA examination in December 2002, the Veteran had 12 degrees of extension actively, 10 degrees passively and 10 degrees after fatiguing, all with pain. As such, a separate rating of 10 percent is assigned. In reaching these conclusions for Diagnostic Codes 5260 and 5261, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of knee pain, weakness, and stiffness. These complaints are well documented in the Veteran's written statements and treatment records. Therefore, the Board has considered the Veteran's pain and assigned a 10 percent rating based on limitation of extension. A rating higher than 10 percent is not warranted, as there is no evidence that the Veteran's extension was limited to 15 degrees, even considering pain. In summary, the Board finds the Veteran's symptoms are appropriately rated by the current 40 percent rating, based on impairment of the tibia and fibula, and a separate 10 percent rating based on limitation of extension to 10 degrees, with pain. The Board notes that in combination, these Diagnostic Codes take all of the Veteran's symptoms into consideration. Diagnostic Code 5262 compensates for the Veteran's loose motion of the knee, including instability and/or subluxation, and requirement to wear a brace, while Diagnostic Code 5261 compensates the Veteran for his painful, limited motion, particularly extension, due to his right knee disability. As such, in assigning the separate rating herein, the Veteran's right knee disability results in a combined rating of 50 percent (combining the 40 percent under Diagnostic Code 5262 and 10 percent under Diagnostic Code 5261). See Combined Ratings Table, 38 C.F.R. § 4.25. As the evidence presented adequately spoke to the diagnostic criteria of 5262 (by analogy) and 5261; and as the Board's decision to assign a separate 10 percent rating for painful, limited extension of the right knee in addition to the 40 percent rating already in effect for loose motion of the right knee, including instability and/or subluxation, and requires use a brace, results in a favorable outcome of the Veteran's right knee claim, the Board concludes that the Veteran has not been prejudiced by this action. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). C. Extraschedular Consideration The Board finds that the Veteran's right and left knee disabilities do not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claims for extraschedular consideration. The level of severity of his knees is adequately contemplated by the applicable diagnostic criteria. For example, the Veteran's symptoms of pain, stiffness, and requirement to wear a brace are considered in the rating criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claims will not be referred for extraschedular consideration. D. Entitlement to a Total Disability Rating Based on Individual Unemployability (TDIU) The record suggests that the Veteran has maintained full-time employment as a postal worker during the appellate period, which would render him ineligible for consideration of a TDIU rating. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is part of an increased rating or initial rating only when there is evidence of unemployability). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for degenerative joint disease of the left knee, status post arthroscopic partial medial meniscectomy, currently evaluated at 10 percent disabling, is denied. Entitlement to a separate 10 percent rating for slight, recurrent subluxation of the left knee, as a residual of status post arthroscopic partial medical meniscectomy, is granted, subject to the regulations controlling disbursement of VA monetary benefits. Entitlement to an increased rating for severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable ACL rupture, and avascular necrosis of weight bearing surface of the lateral tibial plateau, currently evaluated at 40 percent disabling, is denied. Entitlement to a separate 10 percent rating for painful and limitation of extension of the right knee (as a residual of severe degenerative arthritis of the right knee with lateral and medial meniscus fragmentation, questionable ACL rupture, and avascular necrosis of weight bearing surface of the lateral tibial plateau), is granted, subject to the regulations controlling disbursement of VA monetary benefits. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs