Citation Nr: 1313799 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-36 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for status post right knee arthroscopy with chondromalacia. 2. Entitlement to a disability rating in excess of 10 percent for status post left knee arthroscopy with chondromalacia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to February 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which assigned a separate 10 percent evaluation for the Veteran's service-connected status post right knee arthroscopy with chondromalacia and a separate 10 percent for his service-connected status post left knee arthroscopy with chondromalacia. In December 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in August 2010. In December 2012, the Veteran presented sworn testimony during a video conference hearing in Seattle, Washington, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. The Veteran's service-connected status post right knee arthroscopy with chondromalacia is manifested by flexion limited to no less than 135 degrees, with pain at no less than 70 degrees, extension limited to no more than 0 degrees, x-ray evidence of osteoarthritis with painful motion, a meniscal tear with pain, and no objective signs of frequent "locking" episodes, effusion into the knee, recurrent subluxation or lateral instability. 2. The Veteran's service-connected status post right knee arthroscopy with chondromalacia is manifested by flexion limited to no less than 135 degrees, with pain at no less than 80 degrees, extension limited to no more than 0 degrees, x-ray evidence of osteoarthritis with painful motion, a meniscal tear with pain, and no objective signs of frequent "locking" episodes, effusion into the knee, recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected status post right knee arthroscopy with chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5259 (2012). 2. The criteria for a separate 10 percent disability rating for osteoarthritis with painful motion of the right knee are met from August 6, 2010 to the present. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2012). 3. The criteria for a disability rating in excess of 10 percent for service-connected status post left knee arthroscopy with chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5259 (2012). 4. The criteria for a separate 10 percent disability rating for osteoarthritis with painful motion of the left knee are met from August 6, 2010 to the present. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims decided 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to the initial adjudication of the Veteran's claim, a letter dated in July 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, the July 2009 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA examination reports are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced any outstanding treatment records that he wanted VA to obtain or that he felt were relevant to the claims. Significantly, at his December 2012 Board hearing, the Veteran indicated that he had submitted all of his recent private treatment records relating to his knees and that he did not receive any VA treatment. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with a VA examination for his bilateral knee disabilities in July 2009 and December 2011. The examiners obtained thorough histories and provided detailed physical examinations, including the appropriate range of motion testing. Thus, the Board finds that the July 2009 and December 2011 examinations are adequate for determining the disability rating for the Veteran's service-connected bilateral knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected right or left knee disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected status post right knee arthroscopy with chondromalacia and status post left knee arthroscopy with chondromalacia have each been evaluated as 10 percent disabling under Diagnostic Codes 5260-5019. He seeks higher evaluations. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the leg. Diagnostic Code 5019 provides the rating criteria for bursitis. Initially, the Board notes that the more appropriate diagnostic code for rating the Veteran's bilateral knee disabilities is Diagnostic Code 5259, not Diagnostic Codes 5260-5019 as the RO has used. The Veteran has not been diagnosed with bursitis, nor does he have limitation of motion that rises to a compensable degree. Rather, his right and left knee complaints center around meniscal problems, as found during his arthroscopic surgery. Such symptons relating to the meniscus or cartilage of the knee are more closely analogous to Diagnostic Codes 5258 and 5259 for dislocation or removal of the semilunar cartilage. As such, the Board will consider whether the Veteran is entitled to a disability rating in excess of 10 percent for each knee under Diagnostic Codes 5258 and 5259. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under Diagnostic Code 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Under Diagnostic Code 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Codes 5260 and 5261 provide the criteria for rating limitation of motion of the knee and leg. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees. A 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. And a 30 percent rating is assigned for flexion of the leg limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Under Diagnostic Code 5261, a noncompensable rating is assigned for extension of the leg limited to 5 degrees. A 10 percent rating is assigned for extension of the leg limited to 10 degrees. A 20 percent rating is assigned for extension of the leg limited to 15 degrees. A 30 percent rating is assigned for extension of the leg limited to 20 degrees. A 40 percent rating is assigned for extension of the leg limited to 30 degrees. And a 50 percent rating is assigned for extension of the leg limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Additionally, the evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. See 38 C.F.R. § 4.59 (2012). Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-04. Under Diagnostic Code 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The General Counsel for VA, in a precedent opinions dated July 1, 1997, (VAOPGCPREC 23-97) (and as reiterated in VAOPGCPREC 9-98, August 14, 1998) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, 5258, or 5259. General Counsel stated that when a knee disorder is already rated under Diagnostic Codes 5257, 5258, or 5259, the Veteran must also have limitation of motion which at least meets the criteria for a 0 percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under Diagnostic Codes 5257, 5258, 5259 can also be compensated under Diagnostic Code 5003 and vice versa. As referenced above, the Veteran first underwent a VA-QTC examination for his bilateral knee disabilities in July 2009. At that time, he complained of weakness, stiffness, swelling, giving way, lack of endurance, lack of endurance, locking, tenderness, and pain. He also indicated that he experiences flare ups of pain monthly, lasting five days, precipitated by physical activity, and resulting in severe pain and limitation of motion. He denied any heat, redness, fatigability, deformity, drainage, effusion, subluxation, or dislocation. The Veteran had an antalgic gait, no signs of abnormal weight bearing, and did not use any assistive devices for ambulation. The examiner observed bilateral knee tenderness with no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding, misalignment, draining, or subluxation. The right knee demonstrated crepitus and a popping sensation with no genu recurvatum or locking pain and the left knee demonstrated crepitus with no genu recurvatum or locking pain. The examiner recorded range of motion measurements of 0 degrees of extension and 140 degrees of flexion bilaterally with pain at 70 degrees of flexion for the right knee and 80 degrees of flexion for the left knee. Repetitive motion caused additional pain bilaterally, but did not result in any additional limitation of motion. The medial/lateral collateral, anterior/posterior cruciate, and medial/lateral meniscus ligaments were all stable bilaterally. Bilateral knee x-rays were within normal limits. The examiner diagnosed the Veteran with chondromalacia of the bilateral knees, manifested by pain on palpation and pain on range of motion with tenderness of the bilateral knees. The Veteran was examined more recently in December 2011. At that time, he complained of chronic bilateral knee pain that is relieved with rest, popping, and grinding, with no daily locking or swelling, trauma or falls, or instability. He indicated that any standing or lifting caused increased pain and swelling, occurring multiple times per week. He also reported that he occasionally used knee braces when he has to stand for long periods without help. The examiner observed bilateral tenderness and pain on palpation, normal strength on flexion and extension, and normal anterior, posterior, and medial-lateral stability. He did not observe any evidence of, and the Veteran denied any history of, recurrent patellar subluxation or dislocation. The Veteran did report a history of bilateral meniscal tears with residual mild bilateral joint line pain on the medical and lateral joint lines. The examiner recorded range of motion measurements of 0 degrees of extension and 135 degrees of flexion with pain at 130 degrees of flexion and no pain on extension bilaterally. The Veteran was able to perform repeated testing with no additional loss of motion, but with additional pain, less movement, and weakened movement. The examiner diagnosed the Veteran with bilateral status post arthroscopy with chondromalacia and concluded that his knee disabilities did not impact his ability to work. The medical evidence also includes private treatment records that discuss the Veteran's bilateral knee disabilities and are generally consistent with the VA-QTC and VA examinations. Notably, an April 2010 private treatment record indicated that the Veteran's knees demonstrated normal AP and lateral stability bilaterally and May and July 2011 records recorded range of motion measurements of 0 to 135 or 140 degrees bilaterally. An August 2010 private treatment record also referenced an x-ray which found evidence of mild medial tibiofemoral osteoarthritis. Finally, a March 2011 private treatment record indicated that the Veteran had a deficient ACL, but did not provide any information regarding any resulting symptoms including instability. In addition to the medical evidence, the Veteran and his wife have provided lay testimony and statements. Significantly, a July 2009 statement and August 2010 VA Form 9 from the Veteran indicate that he experiences episodes that feel like his knee is starting to dislocate, which he characterizes as "instability." At his December 2012 Board hearing, the Veteran qualified this "instability" as moderate. His wife's lay statements and hearing testimony supported his own. The evidence of record does not establish that the Veteran's service-connected right or left knee disability warrants more than a 10 percent disability rating under his now assigned Diagnostic Code 5259 at any point throughout the appeals period. Diagnostic Code only allows a 10 percent evaluation for any symptoms relating to removal of semilunar cartilage. The Board notes that Diagnostic Code 5258 would provide a higher evaluation of 20 percent for semilunar cartilage complaints. However, there is no evidence that the Veteran warrants such an evaluation. Although he complains of pain and subjectively reports "locking" of both knees, there is no objective evidence of such locking. Additionally, there is no objective evidence of effusion into the joint to warrant a 20 percent evaluation under Diagnostic Code 5259. Notably, although the December 2011 VA examiner noted that the Veteran's meniscal tears resulted in pain, he concluded that there was no evidence of frequent episodes of joint locking of episodes of effusion into the joint. Without evidence of these more severe symptoms relating to the menisci, the Veteran's complaints are adequately compensated under Diagnostic Code 5259 and a higher rating cannot be granted under Diagnostic Code 5258. Although an increased rating cannot be granted under Diagnostic Code 5259, the Board finds that a separate 10 percent evaluation under Diagnostic Code 5003 is appropriate for each knee from August 6, 2010 to the present. Significantly, an August 2010 private treatment record indicates that the Veteran's bilateral knee c-rays showed evidence of very mild medial tibiofemoral osteoarthritis. Although this diagnosis of arthritis has not been confirmed by any other treatment record of VA examination report, the Board will afford the Veteran the full benefit of the doubt and concede that there is x-ray evidence of osteoarthritis as of this date. Although the Veteran's range of motion is not limited to a compensable degree, he does complain of pain on motion. Therefore, he is entitled to a separate 10 percent evaluation for each knee, based on osteoarthritis with painful motion, from August 6, 2010 to the present. As noted above, the Veteran may receive this evaluation under Diagnostic Code 5003 in addition to his separate evaluation under Diagnostic Code 5259. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2012); VAOPGCPREC 9-98; see also Degmetich, supra. Thus, affording the Veteran the full benefit of the doubt, the Board finds that a separate 10 percent rating under Diagnostic Code 5003 is warranted for each knee from August 6, 2010 to the present. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2012). However, although an additional 10 percent rating is appropriate, a rating in excess of 10 percent is not warranted under Diagnostic Code 5003. Notably, there is no evidence showing flexion limited to 30 degrees or less or extension limited to 15 degrees or more. In this case, the Veteran's lowest measured range of motion, even when considering the point at which pain began, was 70 degrees of flexion for the right knee, 80 degrees of flexion for the left knee, and 0 degrees of extension bilaterally. These ranges of motion simply do not meet the criteria for a 20 percent rating under either Diagnostic Code 5260 or 5261 for either knee. As such, the Board finds that a separate rating in excess of 10 percent for arthritis is not warranted for either knee at any time during the appeals period. There is also no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca, supra. Significantly, the Board considered the point at which the Veteran first experienced pain when determining his limitation of motion. Further, while the VA-QTC/VA examiners noted the Veteran's complaints of additional pain with repetitive motion, there was not additional loss of motion or other symptoms, other than those already recognized by the Veteran's currently assigned evaluation, which was raised herein, at least in part, due to such symptoms. As such, an increased rating under DeLuca is not warranted for either knee. Additionally, there is no indication that the Veteran's right or left knee disability warrants an increased rating under any other diagnostic code relating to the knees. The claims folder contains no medical evidence indicating that the Veteran's right or left knee disability is manifested by ankylosis, recurrent subluxation or lateral instability, extension limited to 5 degrees or more, impairment of the tibia and fibula, genu recurvatum, or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5256-5258 or 5261-5263. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5258, 5261-5263 (2012). The Board notes that the Veteran has alleged moderate instability associated with his bilateral knee disabilities. However, there is no objective medical evidence to support his contentions. Rather, all of the medical evidence that discusses knee stability, concludes that the Veteran's bilateral knees are stable. Further, to the extent that the Veteran's references to instability are with regard to the symptoms of his bilateral meniscal tears, assignment of separate rating therefor would not be appropriate under Diagnostic Code 5257 because of the 10 percent evaluations herein assigned for dislocated semilunar cartilage address these symptoms. In this case, Diagnostic Codes 5257 and 5259 essentially cover the same symptoms, so awarding compensation under both diagnostic codes is to be avoided as pyramiding under 38 C.F.R. § 4.14 (2012). See also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); VAOPGCPREC 23-97 and VAOPGCPREC 9-98, supra. Further, there is no evidence that the Veteran's bilateral knee surgical scars result in any disabling effects to warrant a separate evaluation. As such, separate evaluations cannot be assigned under Diagnostic Codes 7801-7805. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2012). Further, the Board notes that there is no indication in the medical evidence of record that the Veteran's right or left knee symptomatology warranted other than the currently assigned disability ratings throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, supra. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, 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, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected bilateral knee disabilities, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability ratings contemplate his most limited range of motion measurements, including the point at which he first experiences pain. The Veteran's complaints of pain and limited range of motion due to pain are also adequately contemplated by the rating schedule. Notably, 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. Further, although the Veteran's arthritis does not result in compensable limited motion, 38 C.F.R. § 4.59 allows for the minimum compensable evaluation for his painful motion. Although the Veteran's currently assigned Diagnostic Code 5259 does not provide criteria for a rating in excess of 10 percent, he could have been alternatively rated under Diagnostic Code 5258. Under Diagnostic Code 5258, a higher evaluation is available for more severe symptoms including frequent episodes of locking and effusion into the knee, which the Veteran does not manifest. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected bilateral knee disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of either of these issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. For all of the foregoing reasons, the Board finds that increased ratings of 20 percent are appropriate for the entire appeals period for the Veteran's right and left knee disabilities. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to evaluations in excess of 20 percent for his right and left knee disabilities, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for status post right knee arthroscopy with chondromalacia, based on meniscus tear, is denied. Entitlement to a separate disability rating of 10 percent for osteoarthritis with painful motion of the right knee is granted from August 6, 2010 to the present, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a disability rating in excess of 10 percent for status post left knee arthroscopy with chondromalacia, based on meniscus tear, is denied. Entitlement to a separate disability rating of 10 percent for osteoarthritis with painful motion of the left knee is granted from August 6, 2010 to the present, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs