Citation Nr: 1315216 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-28 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for right knee chondromalacia, evaluated as 10 percent disabling prior to January 28, 2013, and as 40 percent disabling from January 28, 2013. 2. Entitlement to an increased evaluation for instability, right knee, evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for left shoulder strain, evaluated as 20 percent disabling prior to December 12, 2012, and as 30 percent disabling from December 12, 2012. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 2000 to October 2004. These matters come before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas, and an August 2007 rating decision of the VARO in Nashville, Tennessee. These matters were previously before the Board in January 2010 and September 2011 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. In a February 2013 rating decision, the RO assigned a 30 percent disability rating to left shoulder strain, effective December 12, 2012; assigned a 40 percent disability rating to chondromalacia, right knee, effective January 28, 2013; and, assigned a separate 20 percent rating for instability, right knee, effective March 18, 2010. Although increased ratings were granted, the issues remain in appellate status, as the maximum schedular ratings have not been assigned and the ratings have not been assigned during the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993). During the pendency of the appeal, the Veteran's claim of entitlement to service connection for gastroesophageal reflux disease was granted by the Appeals Management Center (AMC) in a decision dated in August 2012. Thus, that issue is no longer for Board consideration. The issue of entitlement to an initial rating in excess of 10 percent for the Veteran's service connected left knee disability has been raised by the record (See March 2013 informal hearing presentation) but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to January 28, 2013, the Veteran's right knee chondromalacia was manifested by complaints of pain, decreased range of motion, and periodic swelling; objectively, there was no evidence of effusion, no obvious locking, and the Veteran had a range of motion of flexion to 90 degrees with pain beginning at 40 degrees, and extension to 90 degrees with pain beginning at 90 degrees. 2. From January 28, 2013, the Veteran's right knee chondromalacia was manifested by complaints of pain, decreased range of motion, and periodic swelling; objectively, the Veteran had a range of motion of flexion to 90 degrees with pain beginning at 75 degrees, and extension to 30 degrees with pain beginning at 40 degrees. 3. From February 11,2008, the Veteran's right knee chondromalacia has been manifested by objective findings of subluxation in February 2008 and October 2008, representing no more than slight subluxation. 4. From March 18, 2010, the Veteran's right knee chondromalacia has been manifested by complaints of instability and clinical findings of no more than moderate instability. 5. Prior to December 12, 2012, the Veteran's left shoulder strain was manifested by complaints of pain and limitation of motion; objectively, the disability has been manifested by abduction to more than 25 degrees, and no ankylosis, loss of head of the humerus, nonunion of the humerus, or recurrent dislocation of the scapulohumeral joint, 6. From December 12, 2012, the Veteran's left shoulder strain was manifested by complaints of pain and limitation of motion; objectively, the disability has been manifested by abduction limited by pain to 25 degree or less, but without ankylosis, loss of head of the humerus, nonunion of the humerus, or recurrent dislocation of the scapulohumeral joint, CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent disabling prior to January 28, 2013, and in excess of 40 percent disabling from January 28, 2013 for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-5263 (2012). 2. The criteria for a rating in excess 20 percent prior to December 12, 2012, and in excess of 30 percent disabling from December 12, 2012 for left shoulder strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2012). 3. A criteria for a separate rating of 10 percent, and no higher, for subluxation of the right knee effective from February 11, 2008, and no earlier, to March 17, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for a rating in excess of 20 percent from March 18, 2010 for instability, right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in February 2006 and July 2007. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains VA and private medical records, and the statements of the Veteran in support of her claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Veteran was afforded VA examinations and/or opinions in December 2012 and January 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been provided with adequate examinations. The reports include information necessary to evaluate the disability under the applicable diagnostic code rating criteria and are based on clinical examination, diagnostic testing, and consider the Veteran's complaints of symptoms. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Rating Disabilities - in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. Rating Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, 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, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Right Knee Service connection is in effect for chondromalacia of the right knee, which was initially evaluated as 10 percent disabling effective from January 6, 2006. In a February 2013 rating decision, the AMC evaluated the Veteran's chondromalacia of the right knee as 40 percent disabling, effective from January 28, 2013. In addition, the AMC assigned a separate 20 percent rating for instability of the right knee, effective from March 18, 2010. In a statement received in January 2006, the Veteran asserted that an increased rating was warranted. As the Veteran's claim was received by VA in January 2006, the rating period on appeal is from January 2005, one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. 38 C.F.R. § 3.400(o)(2) (2012). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. A January 2005 V examination report reflects that the Veteran reported that her knee pain "comes and goes". A May 2007 VA primary case record reflects that the Veteran reported more problems with her knee. She reported pain under the kneecap, grinding and popping. She reported taking Tylenol, and that she did not want stronger medication because she was breastfeeding her child. A June 2007 orthopedic surgery consultation record reflects that upon clinical examination, there were no deformities or swelling. The Veteran walked without a limp. There was minimum crepitation with patellar motion; however, there was moderate tenderness. There was some discomfort and minimum crepitation on motion of the joint. There was pain with full flexion, but no joint-line tenderness. There was no click, no effusion, and no instability. X-ray and MRI showed that the left knee was within normal limits. A September 2007 VA orthopedic surgery outpatient note reflects that the Veteran reported that "over the last several months" her right knee pain has been worse and she has noticed popping and clicking in her right knee. There was no obvious locking. She denied any frank giving out of her right knee, but "possibly when going upstairs it gives out a little bit." It was noted that the Veteran had never fallen. She reported that she had problems with squatting, mainly pain. She had many bouts of physical therapy with no improvement in her symptoms. She was currently not taking nonsteroidal anti-inflammatory drugs or wearing a brace." Upon clinical examination in September 2007, it was noted that the Veteran had full range of motion of her right knee with no evidence of effusion. There was tenderness to palpation of the patellofemoral facet, medially and laterally. There was pain with movement of the patellae. She had medial joint tenderness not limited to the joint space. She had a negative Lachman's sign. There was no evidence of any instability of the joint (anterior, posterior, lateral, or medial). In a statement dated in June 2008, the Veteran stated that she has pain and instability of the knee. She reported that she has to ice her knee at least once a day. She reported that she cannot walk more than a few minutes without a brace or her knee will start hurting. She reported that with a brace, she can walk for approximately 15 minutes. A February 2008 VA orthopedic surgery outpatient note reflects that the Veteran reported that her pain had gotten worse. Upon clinical examination, the Veteran had full range of motion of the knee from 0 to 135 degrees. She had no varus or valgus laxity. She had no signs consistent with cruciate ligament tear, including a negative Lachman and a negative anterior drawer test bilaterally. She did have a positive apprehension sign on her right knee with lateral subluxation of her patella. A June 2008 private outpatient record from M. Outpatient reflects that the Veteran had right patellar pain and chronic ACL tear. It was noted that the Veteran declined further therapy treatment due to child care. She had attended 7 sessions. The objective findings were noted to be five to 100 degrees of motion, and a positive patellar grind. An October 2008 VA examination report reflects that the Veteran complained of daily pain which was usually dull, but may go to throbbing or sharp, and which varied from mild to severe. She reported daily flare-ups which last up to 30 minutes, and a loss of motion up to 20 to 30 percent. The Veteran also reported recurring swelling, and that her knee catches and locks; she reported she had fallen "a couple of times." She also reported numbness and tingling over the entire lower leg. She had flexion to 90 degrees, with pain beginning at 40 degrees with active motion. She had additional passive range of motion from 90 to 112 degrees with no additional loss of motion on repetitive use. She had extension to 90 degrees with pain beginning at minus 50 degrees and pain ending at 0 degrees. There was no additional loss of motion on repetitive use. Upon clinical examination, there was no grinding, instability, meniscus abnormality, clicks, or snaps. An October 2008 VA orthopedic surgery note reflects that the Veteran's patellofemoral joint had some lateral tilt/subluxation with apparent thinning of trochlear cartilage. There was some effusion of the patellofemoral joint. The Veteran was scheduled for a right knee arthroscopic lateral retinacular release, and a right knee arthroscopic chondroplasty of the medial femoral condyle in December 2008. A March 2010 VA examination report reflects that there was no significant residual instability. It was further noted that the previous right knee lateral release corrected the previous patellar tracking and instability problems. The examiner noted that the knee demonstrated decreased motion, strength, and function. The examiner also noted that it is more likely than not periods of flare-ups are increasingly incapacitating. A June 2010 VA primary care outpatient note reflects that the Veteran reported that her right knee pain is worse since the previous month when she had injured it in a pool. After the injury, she had increased swelling and pain for a week, with the pain persistent. July 2010 radiology reports reflect that an MRI of the knee revealed the following: no convincing evidence for meniscal tear, mild chondromalacia, linear signal changes suggestive of prior arthroscopic surgery, soft tissue thickening with minuscule cysts suggestive of localized synovitis, intact ligaments, mild quadriceps tendinosis. A September 2010 VA clinical record reflects that the Veteran had jumped into the shallow end of a pool that summer and "jammed her knee". It was noted that the knee had "gotten better but worse than since the surgery which was successful and improved her knee". It was noted that the Veteran had a lateral surgical release in December 2008 and had reinjured her knee and now had increased swelling and new pain with stair climbing. The x-rays findings were "no meniscus tear and the patella looks ok. Many minor changes as expected after [years] of patella malalignment syndrome and chondromalacia." It was further noted that there was no real crepitus and no joint line tenderness. There was full range of motion, and stable knee. The diagnosis was chondromalacia patella with contusion of the knee. A June 2011 VA clinical record reflects that the Veteran reported knee pain most of the time with periodic swelling. An October 2012 VA addendum reflects that there is no evidence of unfavorable ankylosis of the right knee. The examiner opined that the limitation of motion of the right knee was considered "moderate" at that time. A December 2012 VA addendum reflects that the right knee instability has not changed from the previous examination and is rated as "moderate." A January 2013 VA examination report reflects that the Veteran reported that she has never been out of work due to knee pain. She reported that she has a flare-up of pain when walking greater than .25 miles, standing longer than 15-20 minutes, repetitive lifting of more than 20 pounds, and sitting or driving greater than 30 minutes. She reported that she avoids squatting, kneeling, stairs, and inclines, and that she cannot use ladders or foot controls. Upon clinical examination, right knee flexion was to 90 degrees, with objective evidence of painful motion beginning at 75 degrees. Right knee extension was to 30 degrees with pain at 40 degrees. The examiner did not note if the Veteran was able to perform repetitive use testing with three repetitions. Locking and instability were also noted. The Board will first address the Veteran's rating for instability of the right knee, which was granted during the pendency of the appeal, to include whether a separate rating is warranted for instability prior to March 18, 2010. A separate 20 percent rating has been established for instability of the right knee, effective from March 18, 2010. Under DC 5257, a 10 percent evaluation is assigned when there is slight recurrent subluxation or lateral instability; a 20 percent evaluation is assigned when there is moderate recurrent subluxation or lateral instability; and, a 30 percent evaluation is assigned when there is severe recurrent subluxation or lateral instability. The words "slight", "moderate", and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). The Board acknowledges the Veteran's lay statements that she has the sensation of her knee giving way or instability; however, such statements are subjective in nature. Joint instability can be objectively diagnosed upon clinical examination. As noted above, numerous clinical records reflect that the Veteran did not have instability of the knee upon clinical testing and examination (e.g. June 2007, September 2007, February 2008, and October 2008). The Board notes, however, that February 11, 2008 and October 2008 VA records do reflect subluxation of the right knee. Based on the foregoing, and in giving the benefit to the Veteran, the Board finds that these two clinical findings reflect slight recurrent subluxation and the Veteran is therefore, entitled to a separate 10 percent rating under DC 5257 from February 11, 2008 to March 17, 2010. The evidence does not reflect, however, that the Veteran had moderate subluxation or instability prior to March 2010. With regard to the 20 percent rating in effect for instability from March 18, 2010, the March 2010 VA examination report reflects that there was no significant residual instability. It was further noted that the previous right knee lateral release corrected the previous patellar tracking and instability problems. Although the report reflects that previous surgery had corrected instability problems, the clinical evidence does not reflect actual instability, but rather, the Veteran's subjective complaints of such. The Board acknowledges that the AMC, in a February 2013 rating decision, assigned a 20 percent evaluation based, in part, on the March 18, 2010 VA examination report. The AMC apparently read the report as reflecting that the Veteran had "instability medial/lateral portion of the knee to the extent of moderate severity." However, upon review of the March 18, 2010 report, the Board finds that these references to instability were with regard to the left knee, and not the right knee. As noted above, the examiner found "no significant residual instability" with regard to the right knee. The Board also notes that the September 2010 VA clinical record reflects that the Veteran had a stable knee. A December 2012 VA addendum reflects that the right knee instability has not changed from the previous examination and is rated as "moderate." The Board finds this addendum to lack probative value as the previous VA examination report which noted instability dealt with the left knee. A January 2013 VA examination report reflects that the Veteran had a 1+ instability on the Lachman test for anterior instability and a 1+ on the posterior instability test. The Board finds that a 1+ equates with slight instability. In any event, the Board will not disturb the 20 percent rating in effect for instability, right knee, effective March 18, 2010. For these reasons also, the evidence of record is against a finding that she had instability which was severe after March 18, 2010. Next, the Board will address the Veteran's limitation of motion of the right knee. Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code (DC 5257), without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. DC 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's right knee chondromalacia is evaluated as noncompensable prior to January 6, 2006, 10 percent disabling from January 6, 2006, and 40 percent disabling from January 28, 2013 based on limitation of motion. DC 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. The June 2007 orthopedic surgery consultation record reflects that the Veteran walked without a limp. She had full flexion, but with pain. Upon clinical examination in September 2007, it was noted that the Veteran had full range of motion of her right knee. A February 2008 VA orthopedic surgery outpatient note reflects that the Veteran had full range of motion of the knee from 0 to 135 degrees. A June 2008 private outpatient record from M. Outpatient reflects that the Veteran had 5 to 100 degrees of motion. An October 2008 VA examination report reflects that the Veteran had flexion to 90 degrees, with pain beginning at 40 degrees with active motion. She had additional passive range of motion from 90 to 112 degrees with no additional loss of motion on repetitive use. The Board has considered that the Veteran had pain on motion; however, she still had considerable flexion that did not equate to a compensable rating. In addition, a July 2010 radiology reports reflect that an MRI of the knee revealed "mild chondromalacia". The Board finds that the term mild supports the finding that the Veteran had considerable flexion such that a compensable rating was not warranted. The Board also notes that a September 2010 VA clinical record reflects that the Veteran had full range of motion, and an October 2012 VA addendum reflects that there is no evidence of unfavorable ankylosis of the right knee. The January 2013 VA examination report reflects that upon clinical examination, right knee flexion was to 90 degrees, with objective evidence of painful motion beginning at 75 degrees. There was no additional limitation of motion following repetitive-use testing. The above clinical records, when taken together, reflect that the Veteran had flexion which was not limited to 45 degrees or less, to include by pain. The Board has also considered the Veteran's extension. A claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. VAOPGCPREC 9 - 2004 (Sept. 17, 2004). DC 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. As noted above, a June 2007 orthopedic surgery consultation record reflects that the Veteran walked without a limp. She had a full range of motion of the knee in September 2007, a range of motion from 0 to 135 degrees in February 2008, and from 5 to 100 degrees in June 2008. An October 2008 VA examination report reflects that the Veteran had extension to 90 degrees with pain beginning minus 50 degrees and pain ending at 0 degrees. There was no additional loss of motion on repetitive use. A full range of motion is from 140 degrees to 0; thus, minus 50 degrees would equate with 90 degrees. A September 2010 VA clinical record reflects that the Veteran had a full range of motion. An October 2012 VA addendum reflects that there is no evidence of unfavorable ankylosis of the right knee. The examiner opined that the limitation of motion of the right knee was considered "moderate" at that time. A January 2013 VA examination report reflects that the Veteran had right knee extension to 30 degrees with pain at 40 degrees. There was no additional limitation of motion following repetitive-use testing. The Board has considered the evidence that the Veteran's complaints of pain and the clinical findings as to where the pain began during range of motion testing. However, it is significant that the clinical evidence is against a finding of additional limitation of motion after repetitive motion. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. As the Court noted in Mitchell, a Veteran is not entitled to the maximum disability ratings under DCs 5260 and 5261 simply because the Veteran exhibits pain throughout range of motion. The October 2008 VA examination report reflects there was no loss of range of motion on testing, and the increased loss on repetitive testing While the March 2010 VA examiner noted that there was loss of range of motion, decreased strength and decreased function, the report is unclear as to the amount. The January 2013 VA examination found no additional limitation of motion following repetitive-use testing. Based on the Veteran's complaints of pain and limitation of motion, and the VA clinical objective findings, with consideration of DeLuca factors, the Board finds that a rating in excess of 10 percent is not warranted for any time period prior to January 28, 2013, and a rating in excess of 40 percent is not warranted for any time period after January 28, 2013 under DCs 5260 and 5261. The Board has considered other knee-related diagnostic codes to determine if any would result in a higher or additional separate rating, but finds none. DC 5256 is not applicable because the medical evidence is against a finding of ankylosis associated with the Veteran's right knee disability. There is also no medical evidence of nonunion or malunion of the tibia or fibula (DC 5262), or of acquired traumatic genu recurvatum with weakness and insecurity in weight bearing (DC 5263). The record also does not reflect genu varus. The Veteran cannot receive ratings for his right knee disability under both DC 5258 and Diagnostic Code 5261 and or 5260 without violating the rule against pyramiding. A precedential opinion of VA Office of General Counsel, which is binding on the Board, has determined that limitation of motion is a relevant consideration under Code 5259, which also addresses disability of semilunar cartilage. See VAOPGCPREC 9-98. By analogy, limitation of motion is also a consideration under DC 5258. Separate ratings under Code 5258 and Codes 5260 and/or 5261 (the Diagnostic Codes which address limitation of flexion and extension of the leg) are therefore precluded due to the prohibition against pyramiding.38 C.F.R. § 4.14. Therefore, a separate rating under DC 5258 is not warranted for the right knee. The Board also notes that the ratings under DC 5261 are more favorable to the Veteran than under DC 5258 given the clinical findings particular to her case. As the preponderance of the evidence is against the claim for an increased rating under DCs 5256, and 5258-5263, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990) Left shoulder Service connection is in effect for left shoulder disability, which was evaluated as 20 percent disabling effective from October 30, 2004. In a February 2013 rating decision, the AMC evaluated the Veteran's left shoulder strain (minor extremity) as 30 percent disabling effective from December 12, 2012. In a statement received by VA in May 2007, the Veteran asserted that an increased rating was warranted. As the Veteran's claim was received by VA in May 2007, the rating period on appeal is from May 2006, one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one year time period. 38 C.F.R. § 3.400(o)(2) (2012). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. The medical evidence of record reflects that the Veteran is right handed. (See January 2007 private therapy record from M. Therapy Center.) Therefore, her left upper extremity is considered the minor limb for rating purposes. A January 2007 private therapy record reflects that the Veteran fell down stairs on January 2007 and landed on her left elbow. She reported a previously left shoulder injury in 2002 with chronic tenderness since then. She reported that her problems have become more severe since her recent fall. She noted difficulty sleeping due to pain and that pain is worse with any activity. Upon examination, range of motion of the shoulder was noted to be 135 degrees of flexion, 150 degrees of abduction, 82 degrees of external rotation, and 75 degrees of internal rotation. The shoulder was tender to palpation. Her shoulder strength was noted to be a 4 out of 5 for abduction, and a 4- out of 5 for rotation, with noticed decreased grip strength on the left. A May 2007 VA primary case record reflects that the Veteran's left shoulder is "better since her fall [in January 2007], it did improve [with physical therapy], but overall is worse than before she fell. Pain is in front and back of shoulder and down upper arm." A June 2007 VA record reflects that an MRI of the Veteran's shoulder "suggests she may have some rotator cuff damage, possibly a frozen shoulder-type injury." A June 2007 orthopedic surgery consultation record reflects that the Veteran reported difficulty sleeping if she sleeps on her left shoulder. Upon clinical examination, both shoulders were symmetrical in appearance. There was no swelling or deformity. The Veteran had full range of motion of the left shoulder although she has painful arc of motion with abduction beyond 70 degrees. Forward flexion was also painful with forward flexion starting at 130 degrees when she started complaining of some discomfort but less than the abduction. There was some tenderness over the AC joint and more tenderness over the supraspinatus tendon at the greater tuberosity area. There was minimum weakness with abduction of the left shoulder when the arm is internally rotated. An x-ray showed that the left shoulder was essentially within normal limits. An MRI showed no evidence of tear but some tendinopathy in the supraspinatus tendon. A September 2007 VA orthopedic surgery outpatient note reflects that the Veteran reported that her left shoulder had become worse since her last treatment. Upon clinical examination in September 2007, the Veteran had active range of motion of 135 degrees of forward flexion. She had 90 degrees of abduction. She had full internal rotation of the arm at her side and 45 degrees of external rotation. She had TTP along the acromion with no specific point tenderness. She did not have acromioclavicular joint tenderness, and was negative for impingement signs. She had pain with isolation and active movement of her supraspinatus muscle. In a statement dated in June 2008, the Veteran stated that she has daily pain and has to ice it at least once a day She also reported that her arm goes numb and she has swelling of the hand. She also noted that her left shoulder is higher than her right shoulder. A February 2008 VA orthopedic surgery outpatient note reflects that upon clinical examination, the Veteran reported painful range of motion. She had no specific point of tenderness. She had passive range of motion that is full, active range of motion is forward flexion to 150 degrees, abduction to approximately 100 degrees, external rotation to 45 degrees, internal rotation to the level of T10. Left upper extremity had 5/5 motor strength. The examiner noted that the left shoulder shows no change on examination, and the Veteran has no significant fining that would be indicative of rotator cuff tear or impingement syndrome. An August 2008 VA record reflects that the Veteran had no obvious increase in muscle atrophy, but had active range of motion which was decreased. There was tenderness to palpation over the insertion of the rotator cuff. She was diagnosed with "rotator cuff tear/internal derangement." An October 2008 VA examination report reflects that the Veteran complained of almost constant pain in the shoulder, with flare-ups four times a day lasting from a few minutes to one-half hour. She reported loss of range of motion, weakness, stiffness, swelling, heat, instability, catching, fatigability, endurance, and deformity. Upon clinical examination, she had forward flexion to 80 degrees with pain beginning at 26 degrees for active motion. She had an additional loss of motion on repetitive use. Prior to repetition, she had passive range of motion to 90 degrees, with pain at 80, but it was to 72 degrees after repetitive use. She had abduction to 60 degrees, with pain at 40. She had passive range of motion to 64 degrees, but it was 38 degrees after repetitive use. External rotation was to 46 degrees with pain at 32 degrees. She had passive range of motion to 56 degrees, and to 32 degrees after repetitive use. She had internal rotation to 26 degrees, with pain beginning at 16 degrees. She had passive range of motion from 26 degrees to 30 degrees; with repetitive use, her range of motion was 0 to 22 degrees. There was no loss of bone, or part of a bone, no recurrent shoulder dislocation, no inflammatory arthritis, and no joint ankylosis. It was noted that the Veteran had tenderness of superior and anterior shoulder, tenderness of proximal upper arm, painful movement of the left shoulder. An x-ray reflected a normal left shoulder. An MRI reflected that "no evidence of rotator cuff tear is seen. A small joint effusion is seen. The diagnosis was "left shoulder strain" and joint effusion. The effect on chores, recreation, and dressing was severe. The effect on shopping, bathing, and grooming was moderate. The effect on traveling and feeding was mild. There was no effect on toileting. The disability prevented exercise and sports. It was noted that the Veteran was a full time student. A December 2008 plastic surgery outpatient note reflects that the Veteran was seen regarding chronic shoulder and back pain secondary to macromastia. She reported that she had been hit by a car several years ago and as a result she suffered from chronic shoulder pain. She also reported that after the birth of her second child, her breast size increased and she noticed a significant increase in her shoulder pain. In January 2009, the Veteran had a bilateral reduction mamaplasty. A March 2010 VA examination report addendum reflects that a diagnosis of left shoulder tendinitis/adhesion capsulitis. It was noted that her left shoulder disability limits endurance for typing or other endurance and limited motion for reaching and filing as an administrative position. The left shoulder demonstrated decreased motion, strength, and function. A June 2010 VA primary care outpatient note reflects that the Veteran reported that her shoulder pain is about the same. A June 2011 VA clinical record reflects that the Veteran reported that her left shoulder continues to hurt most of the time, despite the negative MRI. It was noted that the Veteran take ibuprofen and has done physical therapy and exercised, but it does not seem to make a difference. An October 2012 VA addendum reflects that the Veteran's rotator cuff was intact and there is a minimal degenerative change. It was anticipated that that the limitation of motion of the left shoulder would be considered "mild". A December 2012 VA addendum reflects that three repetitions of the active range of motion of the left shoulder were performed. The left shoulder flexion was 75 degrees and painful motion started at 70 degrees. The left shoulder abduction as 30 degrees and painful motion started at 15 degrees. The patient had no loss of range of motion with three repetitions. The patient did have less moment than normal, weakened movement, excessive fatigability, incoordination, impaired ability to execute skilled movements smoothly and pain on movement. The Veteran reported pain on palpation over the insertion of the rotator cuff and the superior portion of the deltoid muscle. The Veteran demonstrated guarding of the left shoulder on movement. The shoulder abduction strength for the left shoulder was three out of five. The shoulder forward flexion strength was four out of five. There was no evidence of unfavorable ankylosis of the shoulder. The test to measure the rotator cuff (Hawkins ) was positive. The empty can test was positive. The external rotation for infraspinatus testing was positive and the lift-off test was also positive. The major feature limiting the range of motion was pain. In sum, the clinical evidence of record is against a finding that the Veteran's left shoulder motion was limited to 25 degrees or less from the side prior to December 12, 2012. (See June 2007, September 2007, October 2008 records.) Based on the forgoing, the Board finds that a rating in excess of 20 percent prior to prior to December 12, 2012 and in excess of 30 percent from December 12, 2012 is not warranted. Prior to December 12, 2012, the evidence reflected that the Veteran had more than 25 degrees of abduction, even with pain which began at 40 degrees in October 2008. The earliest evidence of record of abduction limited to 25 degrees or less is in December 2012. The Board has also considered whether there is another applicable diagnostic code which would provide the Veteran with a higher rating based on her symptoms but finds that there is not. The evidence of record is against a finding that the Veteran's left shoulder disability is manifested by fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus; therefore a higher rating under DC 5202 is not warranted. In addition, the evidence of record does not reflect that she had ankylosis of scapulohumeral articulation; therefore, a rating under DC 5200 is not warranted. In a March 2013 informal hearing presentation, the Veteran's representative argued that the Veteran's left shoulder be evaluated as 30 percent disabling from March 2010. The March 2010 VA examination report does not contain sufficient clinical findings that the Veteran's left arm motion was limited to 25 degrees from the side. The Board will not resort to speculation that the Veteran had such limitation in March 2010. As noted above, An October 2012 VA addendum reflects that the Veteran's rotator cuff was intact and there is a minimal degenerative change. It was anticipated that that the limitation of motion of the left shoulder would be considered "mild". The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra-schedular The Board has considered that the Veteran has several service-connected disabilities and has determined which symptoms are attributable to a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). 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). An extraschedular disability rating would be warranted based 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) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected right knee and left shoulder disabilities. The Veteran's complaints, to include pain, weakness, swelling, tingling, and numbness have been considered as they relate to limitation of motion. The Board has also considered the Veteran's complaints of instability in providing an appropriate rating. Therefore, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. A March 2010 VA examination report reflects that the Veteran reported that she was employed fulltime and had lost less than a week from her employment in the previous 12 month period. The January 2013 VA examination report reflects that the Veteran has an occupational history of an administrative assistance and has never been out of the work forced because of her knee pain. The record does not reflect that the Veteran was unable to maintain substantially gainful employment due to her service-connected disabilities. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. CONTINUED ON NEXT PAGE... ORDER Entitlement to an increased evaluation for right knee chondromalacia, evaluated as 10 percent disabling prior to January 28, 2013, and as 40 percent disabling effective from January 28, 2013 is denied. Entitlement to an increased evaluation for left shoulder strain, evaluated as 20 percent disabling prior to December 12, 2012, and as 30 percent disabling effective from December 12, 2012 is denied. Entitlement to a separate rating of 10 percent, and no higher, for subluxation of the right knee effective from February 11, 2008, and no earlier, to March 17, 2010 is granted. Entitlement to an increased evaluation for instability, right knee, evaluated as 20 percent disabling from March 18, 2010, is denied. ______________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs