Citation Nr: 1312784 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 03-29 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left knee instability, with a history of left tibial fracture. 2. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2006, the Veteran testified before the Board. The Veterans Law Judge who conducted the May 2006 hearing is no longer employed by the Board. Generally, the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Because the Veterans Law Judge who conducted the May 2006 hearing is no longer employed by the Board, he cannot participate in the adjudication of the Veteran's above-captioned claims. As such, in January 2013, the Board sent the Veteran a letter requesting that he indicate whether he desired another opportunity to testify at a hearing before a new Veterans Law Judge, or if he wanted the Board to proceed with the adjudication of his appeal. In February 2013, the Veteran submitted a response wherein he indicated that he did not wish to appear for a hearing and that he wanted the Board to consider his case on the evidence of record. In accordance with his request, the Board will address the appeal. FINDINGS OF FACT 1. Prior to August 28, 2008, the Veteran's service-connected left leg disability was manifested by severe left knee instability. 2. From August 1, 2009, the Veteran's service-connected left leg disability has not been manifested by left knee instability, including severe instability. 3. The Veteran's left knee traumatic arthritis has been manifested by painful limitation of motion of the left knee; flexion limited to 45 degrees or extension limited to 10 degrees has not been shown. 4. Prior to August 28, 2008, the Veteran had a painful scar of the left leg associated with his service-connected left leg disability. 5. From August 1, 2009, the Veteran's scar of the left leg has not been painful. CONCLUSIONS OF LAW 1. Prior to August 28, 2008, the criteria for a 30 percent rating, but not more, for instability of the left knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 2. From August 1, 2009, the criteria for a rating in excess of 20 percent for instability of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 3. The criteria for a rating in excess of 10 percent for left knee traumatic arthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012). 4. Prior to August 28, 2008, the criteria for a separate 10 percent rating for a painful scar of the left leg have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). 5. From August 1, 2009, the criteria for a compensable rating for a scar of the left leg have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's March 2003, March 2006, May 2007, and April 2010 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2010 letter was sent in compliance with an October 2009 remand by the Board. The Veteran was told that the evidence must show that his service-connected disabilities had increased in severity or gotten worse. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were most recently properly readjudicated in a July 2012 supplemental statement of the case, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Therefore, no further notice is needed for any of the claims on appeal. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA treatment records, including more recent treatment records pursuant to the Board's November 2011 remand. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, pursuant to the Board's November 2011 remand, a December 2011 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disabilities. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis A. Legal Criteria Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of a claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms, which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2012). Therefore, with respect to each of the claims herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The disability ratings on appeal each pertain to evaluating the knee and leg. Instability is evaluated under Diagnostic Code 5257 for "recurrent subluxation or lateral instability." The criteria for that diagnostic code provide for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability, which is the maximum evaluation available under Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that neither the Rating Schedule nor the regulations provide definitions for words such as "slight," "moderate," or "severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). When 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. A noncompensable evaluation is contemplated for knee flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent disability evaluation is assigned when flexion of the knee is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. Id. A 30 percent disability evaluation is assigned when knee flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Id. A noncompensable evaluation is assigned for knee extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When there is limitation of extension of the knee to 15 degrees, a 20 percent disability evaluation is warranted. Id. A 30 percent rating will be assigned for knee extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. Id. A 50 percent disability evaluation is warranted for extension of the knee limited to 45 degrees. Id. Additionally, separate ratings for limitation of knee extension and flexion can be assigned. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). Moreover, separate ratings for knee instability and knee arthritis are permissible. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a disability rating under Diagnostic Code 5257 for instability of the knee is in effect, and there is x-ray evidence of arthritis, a separate rating for arthritis based on painful motion can be assigned under 38 C.F.R. § 4.59). In the Veteran's case, the RO awarded separate ratings for left knee instability and arthritis in the April 2003 rating decision. B. Factual Background During service in December 1979, the Veteran experienced a compound fracture of the left tibia, which was treated with open reduction and internal fixation. He was awarded service connection for residuals of a left tibia fracture in April 1983. The evidence relevant to the claim for increase on appeal shows that the Veteran received treatment through the VA system for left knee pain in 2002. A June 2002 x-ray of the left knee revealed osseous remodeling of the mid tibia from remote trauma. Position and alignment were grossly anatomic, and there was possibly degenerative narrowing of the joint space at the knee. There was no acute osseous or articular abnormality. Magnetic resonance imaging (MRI) from later that month showed no apparent or significant internal derangement; however, there were tiny subchondral loss of signal changes on the medial knee joint compartment which possibly represented posttraumatic bruise or sclerosis. In December 2002, the assessment was arthritic left knee. There was arthritic tenderness of the left knee, but no limitation of motion. A physical therapy evaluation was conducted later that month. The Veteran complained of left knee pain, giving way, failure to lock, tenderness, and pain with prolonged activity. Examination revealed that the Veteran independently walked into the clinic without antalgic gait or gait deviation. There was varus angulation of the left tibia and slight knee recurvatum. Active range of motion of the left knee was from zero to 125 degrees with pain at end ranges. Varus and valgus was at zero degrees and 30 degrees. The left knee was negative for laxity and there was hyperextension. The anterior cruciate ligament and medial collateral ligament were negative. Manual muscle test of the left quadriceps was 4/5 and the hamstring 5/5. There was tenderness to palpation over the scar of the mid tibia of the left lower extremity. Patellofemoral tracking was normal and there was no edema. There was moderate hamstring tightness and Achilles tightness. The left lower extremity measured 99.5 centimeters (cm) while the right lower extremity measured 101 cm. The assessment was traumatic arthritis of the left knee with varus angulation of the tibia and failure of locking mechanism on extension. In March 2003, the Veteran underwent VA examination in connection with the claim. The examiner took a history from the Veteran and was able to review the Veteran's VA treatment records. The Veteran reported experiencing left knee pain, weakness, stiffness, and abnormal motion. He denied complaints of swelling, head, redness, drainage, instability or giving way, and locking. The symptoms were precipitated by activity and treatment included pain medication. Physical examination revealed a left antalgic gait. There was deformity with angulation of the upper tibial area with approximately 15 degrees varum deformity. No malunion, nonunion or loose motion of the tibial area was found. There was tenderness with palpation to the medial aspect of the knee and over the proximal tibial area, especially in the scar. There was 1+ swelling present to the left knee, and pain with range of motion and stability testing. There was no evidence of redness, heat, or weakness, and motor strength of the left knee was 5/5. Range of motion of the left knee was from 5 degrees to 98 degrees. The examiner noted that there was severe pain with range of motion and manipulation of the knee. There was slight loss of definition of the left quadriceps in comparison to the right, but no severe atrophy. The examiner was unable to elicit deep tendon reflexes of the patella or Achilles, and sensation was intact. As to the scar, it measured 13 cm by 2 cm. It was slightly depressed without significant underlying tissue loss. The scar was not adhered, but it was hypopigmented. Color photographs showed the scar as described by the examiner. There was severe medial instability and no lateral stability. However, anterior and posterior drawer sign, and McMurray's sign were negative. The Veteran's left leg was shorter than his right, 108 cm compared to 110 cm. The examiner provided a diagnosis of traumatic injury with compound fracture of the left tibia, resulting in posttraumatic arthritis to the tibial and left knee area. Functional deficits included pain, decreased range of motion and instability. Subsequent to the March 2003 VA examination, the Veteran continued to receive VA treatment for left knee pain. A March 2003 record reflected that the Veteran had both traumatic arthritic limitation of motion and tenderness of the left knee. The same was noted in August 2003. In his September 2003 substantive appeal, the Veteran stated that his knee would hyperextend and roll out to one side as weight was applied. He also indicated that his left leg was shorter than his right leg. The Veteran underwent further VA examination of his left knee in December 2003. The examination was conducted by the same examiner who conducted the March 2003 examination. The examiner again took a history from the Veteran and was able to review the Veteran's VA treatment records. The Veteran reported that he continued to experience left knee pain, weakness, severe problems with instability and giving way, fatigability, and lack of endurance. He denied stiffness, swelling, head, redness, or locking. Treatment included pain medication and a knee brace, and pain increased with activity and no activity. There were recurrent problems with subluxation due to the severe instability of the left knee. Physical examination revealed a left antalgic gait. There was no bone or joint deformity of the left knee. There was 2+ swelling without effusion. There was no redness or warmth, but there was atrophy of the quadriceps as the left measured 38 cm in circumference to 47 cm on the right. The patella tracked poorly and there was pain with movement of the patella. Motor strength was 4/5 with decreased strength and increased pain with repetitive motion. The scar was measured as 15 cm by 2 cm. It was well healed and non-adherent. There was slight depression of the scar without significant underlying tissue loss. As to instability, there was severe medial instability and mild lateral instability. Anterior drawer was negative for instability, but posterior drawer was moderate for instability. McMurray's sign was negative. The Veteran could not perform a squatting maneuver due to problems with instability. The length of the left leg was measured as 108 cm compared to 110 cm for the right leg. There was a 14 degree varum deformity in the tibial area and 16 degrees when weightbearing. Range of motion of the left knee was from zero to 88 degrees. X-rays of the left knee showed some narrowing of the medial compartment of the knee while x-rays of the left tibia showed a healed fracture of the middle third of the tibia with very slight malalignment noted. The diagnosis was traumatic injury with posttraumatic arthritis of the left knee. After the examination, the Veteran continued to seek treatment through the VA system. A June 2004 record noted that he was doing well with his custom knee brace. There was still traumatic arthritic limitation of motion and tenderness of the left knee. The same was noted in March 2005 and July 2005. At his Board hearing in May 2006, the Veteran testified that he received regular VA treatment for his left knee problems. He stated that the left knee would hyperextend backwards and shift to the side without his knee brace. The Veteran stated that he had fallen down when his left knee gave out. He also experienced pain in the left knee, which was treated with pain medication. The Veteran believed that his left knee arthritis was worse than when it was initially evaluated by VA. VA records show continued treatment for left knee problems in 2007. In October 2007, the Veteran complained that his left knee pain was progressively getting worse. Examination showed obvious varus deformity, but range of motion of the left knee was within normal limits. Strength of the left knee was 4/5. X-rays revealed narrowing of joint space of the left knee, varus deformity, widening of the lateral joint space, and arthritic changes. The diagnosis was mild degenerative changes of the left knee with varus deformity. In January 2008, the Veteran could extend the left knee to 5 degrees and flex to 110 degrees. Motor strength was 4+/5. There was mild decreased sensation along the scar. The assessment was left knee varus malunion. It was thought that the Veteran needed corrective surgery. The same findings were noted in March 2008. Another VA examination of the Veteran's left knee was conducted in July 2008 pursuant to a remand by the Board in April 2007. Although the report is dated in September 2008, the information contained therein makes clear that the examination was conducted in July 2008. The examiner reviewed the claims file, including VA treatment records. The Veteran reported that he was continuing to experience left knee pain and to seek treatment through the VA system. The pain would increase on activity and even when sitting. He also reported weakness, instability, fatigability, and hyperextension of the left knee. The Veteran indicated that he had fallen several times. He denied swelling, heat, redness, or locking. Treatment included pain medication and a knee brace. Physical examination revealed a slow, stiff antalgic gait and the Veteran walked with a limp favoring his left lower extremity. There was a significant varus deformity of the left shin. On active range of motion testing, the Veteran had +5 degrees of extension and 110 degrees of flexion. The examiner stated that this meant that the Veteran lacked 5 degrees of extension. Passive range of motion was from +5 degrees to 118 degrees. On repetitive motion, the Veteran had +5 degrees of extension and 118 degrees of flexion. The examiner noted that the Veteran exhibited pain on repetitive motion, as well as fatigability. He did not exhibit incoordination or weakness. There was also mild crepitus on motion, but there was no ankylosis. A scar was measured as 5.5 inches by 1 cm. Leg length discrepancy was evident as the left leg measured 99.5 cm compare to 101 cm on the right. There was left knee tenderness to palpation and pain on McMurray's testing. The examiner indicated that it did not appear that the left knee ligaments were unstable clinically. Residual diagnoses from the Veteran's in-service injury included posttraumatic arthritis of the left knee, varus deformity of the left shin due to left tibia malunion, and leg length discrepancy with secondary altered gait. The examiner characterized the severity of the Veteran's traumatic arthritis of the left knee as mild. However, the examiner characterized the residuals of the left tibial fracture and subsequent malunion as severe at that point. Surgical intervention was required according to the examiner. An August 2008 MRI revealed interval resolution of the small knee joint effusion, mild degenerative joint disease changes of the patellofemoral compartment, and cysts. A pre-operation note later in August 2008 noted that the Veteran had increasing left knee pain. Active range of motion was from 5 degrees to 110 degrees. There was no instability on testing. On August 28, 2008, the Veteran underwent left knee surgery by VA providers. The pre- and post-operation diagnosis was left tibia malunion. The procedure was a reconstructive osteotomy of the left tibia with open reduction internal fixation. By a January 2009 rating decision, the RO granted a temporary total (100 percent) rating effective August 28, 2008, for the Veteran's service-connected left knee disabilities on account of convalescence from the surgery. See 38 C.F.R. § 4.30 (2012). The temporary total rating was assigned through October 31, 2008. In an April 2009 rating decision, the RO extended the temporary total rating through March 31, 2009. The RO again extended the temporary total rating in a July 2009 rating decision-through July 31, 2009. Because the Veteran has been awarded the maximum benefit allowable by law during the period of August 28, 2008 through July 31, 2009, the Board will not address the evidence in detail or consider whether the Veteran is entitled to an increased rating during that time period. See 38 C.F.R. § 4.30(a) (the total rating will be followed by an open rating reflecting the appropriate schedular evaluation). In August 2009, the Veteran had a follow-up after his surgical procedure. His lower left leg surgical incision had healed with no swelling. Range of motion was minus 5 degrees to 100 degrees. X-rays of the left leg revealed a status post open reduction internal fixation mid tibia osteotomy with metallic side plate and screws. The distal fibula was healing in bayonet apposition with callus. The assessment was status post left tibial osteotomy for malunion. It was also noted that the Veteran could return to work. An October 2009 record indicated that there was no limitation of motion or tenderness of the extremities. In December 2009, it was noted that the Veteran had left knee pain with no numbness or tingling, and he was ambulating well. X-rays of the left leg showed a status post osteotomy of the mid tibia. Range of motion of the left knee was from zero degrees to 125 degrees. The Veteran had a normal gait and stability was good on testing. In February 2010, the Veteran underwent hyalgan injections in the left knee for treatment. X-rays of the left knee revealed mild to moderate degenerative joint disease that had advanced since the prior x-ray. The injections continued in March 2010. X-rays of the left leg in March 2010 showed status-post osteotomy of the mid tibia with the alignment appearing anatomic and unchanged, metallic components intact, and mild degenerative joint disease of the knee. In April 2010, the Veteran indicated that the injections were not working. The Veteran sought additional injections for left knee pain in September 2010 through November 2010. A February 2011 record indicated that there was no limitation of motion or tenderness of the extremities. In November 2011, the Veteran again requested left knee injections. In December 2011, the Veteran underwent another VA examination of his left knee pursuant to the Board's November 2011 remand instructions. The examiner was the same examiner who conducted the July 2008 VA examination. The examiner again reviewed the claims file and noted an accurate history. The initial diagnosis was left tibia varus malunion secondary to military-related fracture. Following August 28, 2008, the diagnosis was post reconstructive left tibial valgus reconstructive osteotomy and left fibular osteotomy, the procedure of which was done secondary to the initial diagnosis. The examiner noted that left knee injections were likely to continue for treatment. The Veteran reported experiencing pain on flare-ups, which occurred intermittently. Treatment consisted of pain medication, a brace, and cane. Range of motion testing revealed that the Veteran had extension of the left knee to zero degrees and flexion to 125 degrees. It was noted that the Veteran experienced pain at 50 degrees of flexion. On repetitive testing, the Veteran retained full extension of the left knee and flexion was to 130 degrees. The examiner noted that the Veteran had additional functional loss on repetitive motion of the left knee characterized as less movement than normal and pain on movement. There was pain on palpation to the left knee. Muscle strength was normal. As to possible instability of the left knee, the examiner found that there was no anterior, posterior or medial-lateral instability. Additionally, there was no patellar subluxation or dislocation. No additional conditions were identified and there was no history of meniscal surgery. The examiner noted that there was a surgical scar, but it was indicated that the scar was not painful, unstable, or of a total area measuring greater than 30 sq. cm. The scar measured 17 cm by 3 cm at its widest. There were scattered areas of hyperpigmented brownish color at the scar site and mild erythema, but no discharge or drainage. There was no keloid formation, breakdown, or elevation or depression. Color photographs showed the scar as described by the examiner. A slight amount of atrophy was noted in that the left calf measured 39 cm in circumference compared to the right side of 43 cm, and the left thigh measured 49 cm compared to the right side of 52 cm. The examiner further noted that the varus deformity of the left leg had been corrected, there was no ankylosis, and the left knee was stable with minimal or mild crepitance. The examiner reviewed the most recent imaging, which showed degenerative changes in the left knee and status post osteotomy of the tibia and fibula. The arthritis was characterized as mild. From January 2012 through February 2012, the Veteran continued with left knee injection treatment through the VA system. A February 2012 record indicated that there was no limitation of motion or tenderness of the extremities. C. Left Knee Instability For the time period from when the Veteran submitted his claim for increase in December 2002 to his left knee surgery on August 28, 2008, the evidence regarding the severity of the Veteran's left knee instability is conflicting in nature. In some instances, the Veteran denied experiencing instability, but in others he made clear that he would fall due to the instability in the knee particularly if he was not using his brace. Also, there was varying medical assessments of the type and severity of instability. In March 2003, the VA examiner indicated that there was severe medial instability and no lateral stability even though some instability testing was negative. In December 2003, the same examiner noted that there were recurrent problems with subluxation due to the severe instability of the left knee. The examiner characterized the medial instability as severe, but the lateral instability as only mild. Then, although the Veteran reported experiencing instability at the July 2008 examination, the examiner indicated that it did not appear that the left knee ligaments were unstable clinically. Although the July 2008 VA examiner seemed to find that there was no instability, this is not supported by the other evidence that showed not only instability in the left knee, but significant instability. The label of "severe" was used on multiple instances and the March 2003 examination indicated that there was no stability in the left knee, which is reflective of an unstable knee. Additionally, the fact that the Veteran eventually underwent left knee surgery in August 2008 is supportive of a more severe disability rather than a less severe disability. In consideration of this evidence, and when resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected left leg disability resulted in severe instability for the entire rating period prior to August 28, 2008. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; see also Hart, 21 Vet. App. at 509-10. Therefore, a 30 percent disability rating is warranted for instability during this time period. See 38 C.F.R. § 4.71, Diagnostic Code 5257. This is the maximum schedular rating allowable for instability of the knee. In contrast, since the Veteran's left leg surgery and the ensuing convalescent period, the evidence has not showed that the Veteran's service-connected left leg disability has resulted in severe instability. In fact, the VA treatment records and the December 2011 examination show that there is no instability in the left knee and it is considered stable. Additionally, the Veteran has not complained of instability since the surgery, but only left knee pain. Accordingly, because the evidence does not reflect that there has been severe instability since August 1, 2009 (first day after the convalescent period), the Board concludes that a rating in excess of 20 percent is not warranted since that time. See 38 C.F.R. § 4.71, Diagnostic Code 5257. Due to the Veteran's dynamic symptoms, a rating stage is less than a previous stage. See Hart, 21 Vet. App. at 509-10. Because the Veteran's disability rating was never reduced below the level of 20 percent that was appealed), the reduction procedures of 38 C.F.R. § 3.105(e) and the "stabilization" provisions of 38 C.F.R. § 3.344 are not for application. See Singleton v. Shinseki, 659 F.3d 1332, 1334-36 (Fed. Cir. 2011); O'Connell v. Nicholson, 21 Vet. App. 89, 94 (2007). D. Left Knee Traumatic Arthritis As detailed previously, arthritis is to be rated based on limitation of motion of the affected joint. In the Veteran's case, the evidence has shown that there is at least some limitation of motion of his left knee as a result of his service-connected left leg disability, particularly prior to his August 2008 surgery. However, the evidence does not show that his service-connected disability has resulted in limitation of motion warranting an evaluation in excess of the already assigned 10 percent rating. Since the Veteran's claim for increase, the range of motion of the left knee has been measured on multiple occasions. As to extension (not inclusive of the convalescent period), limited motion has not been measured as more than 5 degrees. Extension of the knee limited to 5 degrees warrants only a noncompensable rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. As to flexion, limited motion has not been measured as less than 88 degrees. Flexion of the knee limited to 88 degrees warrants only a noncompensable rating as well. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. This is so even with consideration of the effects of painful motion and other factors. See 38 C.F.R. §§ 4.40, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The evidence shows that the Veteran has experienced painful motion with weakness and fatigability. The December 2011 VA examiner noted that pain began at 50 degrees during flexion of the left knee. Even with consideration of the painful motion, a compensable rating is not warranted as a 10 percent rating is reflective of flexion limited to 45 degrees. Nevertheless, the Veteran has already been awarded a 10 percent rating for painful motion of the left knee resulting from his traumatic arthritis. Based on this evidence, the 10 percent rating is appropriate and a higher evaluation is not warranted at any time during the rating period on appeal. See Hart, 21 Vet. App. at 509-10. E. Other Considerations and Conclusion The Board has considered whether a higher or separate rating is warranted for the Veteran's disability under other rating criteria and diagnostic codes. The evaluation of the same disability or the same manifestation under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012). For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). As to other diagnostic codes pertaining to the knee and leg, the evidence reflects that the Veteran's service-connected left leg disability has not resulted in ankylosis of the left knee or any cartilage problems or removal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259. The evidence prior to the Veteran's August 2008 surgery reflects that there was hyperextension of the left knee. However, as the Veteran has already been awarded a 10 percent rating for limited motion of the left knee, a separate 10 percent rating for genu recurvatum would be pyramiding symptoms. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5263. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. Under that diagnostic code, a 10 percent rating is warranted for malunion of the tibia or fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. Lastly, a 40 percent rating is warranted for nonunion of the tibia or fibula, with loose motion, and the requirement of a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In the Veteran's case, he has had impairment of the tibia as his service-connected disability is the result of a tibial fracture. Although nonunion has not been shown, malunion was evident particularly shortly prior to his August 2008 surgery. The July 2008 VA examiner expressly found that there was left tibia malunion. Notably, the evidence does not show that there was malunion after the surgery, which was performed to correct the malunion. Although the criteria for a 30 percent rating are met prior to the August 2008 surgery because the Veteran had malunion of the tibia with marked knee disability, a separate rating is not warranted because the Veteran is already in receipt of separate 30 percent and 10 percent ratings for his knee disability for that time period as a result of his left knee instability and painful limitation of motion of the left knee. Another 30 percent rating that contemplates marked knee disability, which is already contemplated by the instability and limitation of motion ratings, would be pyramiding of those symptoms. See 38 C.F.R. § 4.14. Therefore, a separate or higher rating is not warranted under Diagnostic Code 5262 for impairment of the tibia. The evidence reflects that the Veteran's left lower extremity is shorter than his right lower extremity. Based on the VA examination reports, the leg length discrepancy is between 1.5 cm and 2 cm. The difference in leg length appears to be the result of the service-connected left tibia fracture. See Mittleider v. West, 11 Vet. App. 181, 182(1998) (observing that when it is not possible to separate the effects of a service-connected condition and a nonservice-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service-connected condition). Under the diagnostic code for shortening, a 10 percent rating is not warranted unless there is a shortening of at least 3.2 cm. See 38 C.F.R. § 4.71a, Diagnostic Code 5275. As the Veteran's left leg is not shorter than his right leg by that amount, the criteria for even a compensable rating are not met. In any case, a note following the rating criteria indicates that a rating for shortening of the lower extremity is not to be combined with other ratings for fracture or faulty union in the same extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5275, Note 1. Therefore, a higher or separate rating is not warranted for leg length discrepancy under Diagnostic Code 5275. The evidence shows that, prior to August 28, 2008, the Veteran's residual scar from his initial surgery to correct the left tibia fracture was tender and painful on examination. When a scar is superficial and painful, a 10 percent rating is warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008) (rating criteria for scars that were in effect at the time of the Veteran's claim and applicable to the claim). Although the Board previously referred the scar aspect of the Veteran's disability to the RO for appropriate action in April 2007 and October 2009, the Board finds that consideration of a separate rating for a scar is appropriate in the Veteran's case. See Esteban v. Brown, 6 Vet. App. 259 (1994). Accordingly, the Board concludes that a separate 10 percent rating is warranted for a painful scar of the left leg associated with the service-connected disability prior to August 28, 2008. As a result of the August 2008 left leg surgery, additional surgical scarring was created. The December 2011 VA examiner indicated that it was not painful and there are no indications that a compensable rating is warranted for the scar post surgery. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008). Therefore, from August 1, 2009, a noncompensable evaluation is warranted for the scar. Because the Veteran's disability rating was never reduced below the level that was appealed as no separate rating was previously in effect, the reduction procedures of 38 C.F.R. § 3.105(e) and the "stabilization" provisions of 38 C.F.R. § 3.344 are not for application. See Singleton, 659 F.3d at 1334-36; O'Connell, 21 Vet. App. at 94. A claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) can be a component of the appeal for higher ratings regarding service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 451-53 (2009). In this case, the evidence reflects that the Veteran has worked for the entire time period since his claim for increase (exclusive of his convalescent period following left leg surgery). Consequently, the Board does not find that a claim for a TDIU is raised by the record or a part of the rating issues on appeal. Id. at 451-53; see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (finding that once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for each disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluations are, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture for each of the disabilities is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The manifestations of the Veteran's service-connected left leg disability were evaluated as both instability and arthritis under the applicable diagnostic codes, as well as for a scar. The criteria are found by the Board to specifically contemplate the level of occupational and social impairment caused by these disabilities. The Veteran's left leg disability is manifested by varying levels of instability and limitation of motion over time. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 30 percent disability rating for instability of the left knee prior to August 28, 2008, a 20 percent rating for instability of the left knee from August 1, 2009, a 10 percent rating for traumatic arthritis of the left knee for the entire rating period, and a 10 percent rating for a painful scar of the left leg prior to August 28, 2008. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 7804; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). For the foregoing reasons, the Board finds that the Veteran is entitled to a higher evaluation for left knee instability-30 percent prior to August 28, 2008. Also, a separate 10 percent evaluation is warranted for a painful scar of the left leg prior to August 28, 2008. Other higher or separate ratings must be denied. In reaching these conclusions, the Board has applied the benefit-of-the-doubt doctrine where appropriate. However, as the preponderance of the evidence is against other higher or separate ratings, the doctrine is not further applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Prior to August 28, 2008, an evaluation of 30 percent, but no more, for instability of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. From August 1, 2009, an evaluation in excess of 20 percent for instability of the left knee is denied. An evaluation in excess of 10 percent for left knee traumatic arthritis is denied. Prior to August 28, 2008, an evaluation of 10 percent, but no more, for a painful scar of the left leg is granted, subject to the laws and regulations governing the payment of monetary benefits. From August 1, 2009, a compensable evaluation for a scar of the left leg is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs