Citation Nr: 1315369 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 00-00 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, currently rated 60 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2004, based on extra-schedular consideration under 38 C.F.R. § 4.16(b) (2012). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from April 1971 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). In September 2006, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned clarified the issues on appeal and inquired as to the nature and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In a January 2008 decision, the Board denied entitlement to increased disability ratings for right knee disability for the period prior to July 18, 2003; for the period July 18, 2003, to September 12, 2003; and, from September 12, 2003. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a Joint Motion for Remand and August 2009 Court Order, the decision was vacated and remanded for further development consistent with the Joint Motion for Remand. This matter then returned to the Board in October 2010 at which time it was remanded for additional development consistent with the Joint Motion for Remand. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that additional VA outpatient treatment records dated through December 3, 2012, were added to the Virtual VA paperless claims file, but not in the paper claims file. These records were considered by the agency of original jurisdiction a February 2013 Supplemental Statement of the Case. The remaining evidence contained in the Virtual VA paperless claims file are either duplicative of that in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. For the period from June 15, 1998, to September 26, 2001, and from December 1, 2001, to July 17, 2003, the Veteran's right knee was manifested by no more than frequent episodes of locking, pain and effusion of the joint. 2. For the period from June 15, 1998, to September 26, 2001, and from December 1, 2001, to July 17, 2003, the Veteran's right knee did not have compensable loss of range of motion and its arthritis did not involve two or more major joint groups. 3. For the period from July 18, 2003, to September 11, 2003, the Veteran's disability more closely approximates a severe impairment of the right knee. 4. For the period from July 18, 2003, to September 11, 2003, the Veteran's right knee did not have compensable loss of range of motion and its arthritis did not involve two or more major joint groups. 5. From November 1, 2004, the Veteran's right total knee replacement residuals have been manifested by severe weakness and pain, but do not more closely resemble an amputation of a lower extremity at the upper third of the thigh. 6. The Veteran's case was referred to the Director of Compensation and Pension Service for extra-schedular consideration of entitlement to an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, under 38 C.F.R. § 3.321(b)(1), and in January 2013, the Director of Compensation and Pension Service determined that an extra-schedular disability rating is not warranted. 7. The Veteran's case was referred to the Director of Compensation and Pension Service for extra-schedular consideration of entitlement to a TDIU prior to November 1, 2004, under 38 C.F.R. § 4.16(b), and in January 2013, the Director of Compensation and Pension Service determined that an extra-schedular total disability rating is not warranted. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for a right knee disability from June 15, 1998, to September 26, 2001, and from December 1, 2001, to July 17, 2003, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & 2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.68, 4.71a, Diagnostic Code 5258 (2012). 2. The criteria for a separate disability rating in excess of 10 percent for arthritis of the right knee from June 15, 1998, to September 26, 2001, and from December 1, 2001, to July 17, 2003, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, Diagnostic Codes 5003, 5010, 5260, 5261. 3. The criteria for a disability rating in excess of 30 percent for a right knee disability from July 18, 2003, to September 11, 2003, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & 2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.10, 4.68, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for a separate disability rating in excess of 10 percent for arthritis of the right knee from July 18, 2003, to September 11, 2003, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, Diagnostic Codes 5003, 5010, 5260, 5261. 5. The criteria for a disability rating greater than 60 percent for the right total knee replacement from November 1, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.68, 4.71a Diagnostic Code 5055 (2012). 6. The Board does not possess the authority to award an extra-schedular rating; therefore there is no remaining allegation of error of fact or law concerning the appeal as to the issue of entitlement to an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, based on extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). 38 U.S.C.A. §§ 1155, 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.321 (2012); Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 7. The Board does not possess the authority to award an extra-schedular rating; therefore there is no remaining allegation of error of fact or law concerning the appeal as to the issue of entitlement to a TDIU prior to November 1, 2004, under 38 C.F.R. § 4.16(b). 38 U.S.C.A. §§ 1155, 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 4.16 (2012); Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In correspondence dated April 2002, April 2003, July 2003, October 2003, February 2004, July 2004, March 2006, February 2007, March 2008, July 2008, August 2008, May 2010, and October 2011, the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Concerning the claim for an increased initial disability rating, this is an appeal arising from a grant of service connection in an October 2002 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Concerning the claims of an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, based on extra-schedular consideration under 38 C.F.R. § 3.321(b)(1), and to a TDIU prior to November 1, 2004, under 38 C.F.R. § 4.16(b), notification or further evidentiary development in accordance with the VCAA is not necessary, as these issues will be dismissed as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542-43 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. This case was remanded in October 2010 in order to obtain any outstanding treatment records, to afford the Veteran a VA examination, and to consider referral of the issues to the Director of Compensation and Pension Service for extra-schedular disability rating consideration. Thereafter, additional VA treatment records dated through December 2012 were associated with the either the Virtual VA paperless claims file or the Veteran's paper claims file, and the Veteran was afforded a VA examination in January 2012. Addendums to the January 2012 VA examination report were provided in February 2012 and May 2012. Thereafter, the case was referred to the Director of Compensation and Pension Service for extra-schedular disability rating consideration, and a decision was issued in January 2013. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the October 2010 remand directives such that no further action is necessary in this regard. See D'Aries, supra. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. 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). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the Court has also noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Veteran's claim to reopen a previously denied claim of entitlement to service connection for a right knee disability was received by the RO in June 1999. Thereafter, service connection for his right knee disability was granted by rating action of the RO dated in October 2002. At that time, an initial 20 percent disability rating was awarded under Diagnostic Code 5258 for right knee injury, status post partial meniscectomy, from June 15, 1998; a temporary total disability rating was awarded from September 27, 2001, to November 30, 2001; and a 20 disability rating from December 1, 2001. A separate 10 percent disability rating was also awarded under Diagnostic Code 5010 for traumatic arthritis of the right knee with limitation of motion from June 15, 1998. In March 2004, the service connected right knee injury, status post partial meniscectomy, was increased to 30 percent disabling under Diagnostic Code 5257, effective as of July 18, 2003. The Veteran was also awarded a temporary total disability rating under 38 C.F.R. § 4.30 from September 12, 2003, to October 31, 2004, and then 10 percent under Diagnostic Code 5010, beginning in November 1, 2004. In April 2007, the service connected right knee disability was rated as 60 percent disabling, under Diagnostic Code 5055, effective as November 1, 2004. The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) (2012) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the September 1994 rating decision that initially denied service connection for the right knee disability, and following the issuance of the June 1996 rating decision that determined new and material evidence had not been received to reopen the previously denied claim of service connection for a right knee disability, there is no evidence received within one year of each respective decision which relates to the service-connected right knee disability. Thus, with respect to the Veteran's claim seeking an increased disability rating, the October 2002 rating action is the proper rating decision on appeal. The Board will address the disability ratings assigned for the Veteran's right knee disability during each stage over the course of this appeal. See Fenderson. Right Knee Disability from June 15, 1998, to September 26, 2001, and from December 1, 2001, to July 17, 2003 As noted, the Veteran's claim to reopen a previously denied claim of entitlement to service connection for a right knee disability was received by the RO in June 1999. During the time period captioned above, the Veteran's right knee disability was rated as 20 percent disabling under Diagnostic Code 5299-5258 for right knee injury, status post partial meniscectomy, and separately rated as 10 percent disabling under Diagnostic Code 5010 for traumatic arthritis of the right knee with limitation of motion from June 15, 1998. For the time period from September 27, 2001, to December 1, 2001, the Veteran was rated at 100 percent pursuant to 38 C.F.R. § 4.30 for convalescence, and there is no basis for assigning a higher rating during this period. A designation of a diagnostic code that ends in "99" reflects that the disability is a condition not specifically listed in the Rating Schedule, and hyphenation with another diagnostic code indicates that the disability has been rated as analogous to the second code listed. See 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a maximum 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Traumatic arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Additionally, Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the leg. Under this diagnostic code provision, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. A 30 percent disability rating is the highest available under Diagnostic Code 5260. 38 C.F.R. § 4.71a , Diagnostic Code 5260 (2012). Diagnostic Code 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code provision, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. A 50 percent disability rating is the highest available under Diagnostic Code 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Standard range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5257, other impairment of the knee, a 10 percent disability rating is warranted where there is slight recurrent subluxation or lateral instability. A 20 percent disability rating requires moderate recurrent subluxation or lateral instability. A 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. VA's General Counsel has held that a Veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604 (1997). When a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero-percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98 (1998); 64 Fed. Reg. 52,376 (1999), the VA General Counsel further explained that, when a Veteran has a knee disability rated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In the alternative, a compensable rating may be granted by virtue of 38 C.F.R. § 4.59. In VAOPGCPREC 9-2004 (2004); 69 Fed. Reg. 59,990 (2004), the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a Veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). Where a Veteran has both a limitation of flexion, and limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA outpatient treatment records dated from May 1999 to June 2002 show that the Veteran was treated intermittently for symptoms associated with his right knee disability. In March 2000, the Veteran was said to have a range of motion of -5 degrees to 100 degrees, with no swelling, but crepitus. He reported significant pain and was provided with a cane. A letter from the Central Arkansas Veterans Healthcare System dated in June 2001 shows that the Veteran was said to continue to have pain and disability of function in the right knee. A magnetic resonance imaging (MRI) study was said to reveal an old anterior cruciate ligament injury of the right knee; a medial meniscus tear of the right knee; chondromalacia of the right patellofemoral joint and lateral joint compression; and loose body of the posterior right knee joint. Arthroscopy was planned for evaluation and surgical repair. A VA outpatient treatment record dated in November 2001 shows that the Veteran was seen following arthroscopy which had revealed a grade 4 chondral defect on the medial femoral condyle, as well as, diffuse osteoarthritis. There had also been a small meniscal tear that was debrided. The Veteran described continued pain and the need to use a cane to get around. A VA examination report dated in June 2002 shows that the Veteran reported ongoing pain in the right knee which he described as a nine on a scale of 10. He added that he had not worked since 1996. He noted experiencing episodic swelling. He would walk approximately three blocks at which point he would have to stop because of the pain. He would develop pain after standing for five minutes. He indicated that he had a tendency to shift the weight to the left side, and at times the right knee would collapse resulting in excessive pain and swelling. He would take pain medication. Physical examination revealed a five degree valgus trend in alignment, and a range of motion from zero to 120 degrees. Collateral and cruciate ligaments were stable. Extreme ranges of motion were painful. Arthritis and genu valgus was noted on X-ray. The diagnosis was degenerative/traumatic arthritis of the right knee and osteochondrosis. The Veteran was said to have described pain and a considerable or severe functional loss because of his restricted endurance, and restriction of range of motion of the right knee joint. The examiner added that the Veteran's functional loss would increase in the future, and that the Veteran would require a total knee replacement. Private medical treatment records from the Jefferson Regional Medical Center dated from April 2003 to August 2003 show that the Veteran continued to receive physical therapy for ongoing right knee pain. A private medical examination report from W. S. Bowen, M.D., dated in July 2003, shows that the Veteran reported pain and swelling of the right knee. There was also a mild valgus alignment of the right knee. A history of two prior arthroscopies with some minimal benefit was noted. Physical examination revealed bone to bone crepitus in the lateral compartment of the right knee with minimal valgus alignment of about seven or eight degrees. He could fully extend and flex to about 120 degrees. X-rays revealed end stage lateral compartment arthritis with significant osteophyte formation. The impression, in pertinent part, was symptomatic right knee osteoarthritis. The plan was for physical therapy and a large steroid injection. It was indicated that the Veteran would eventually knee a total knee replacement. As noted above, during this period, the Veteran's right knee was rated as 20 percent disabling under Diagnostic Code 5258 which is the maximum available for dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. As such, a higher disability rating under this diagnostic code provision is not warranted. In considering the applicability of other diagnostic code provisions, the Board finds that a higher evaluation is not warranted under Diagnostic Code 5257 because severe recurrent subluxation or lateral instability was not identified. In this regard, the VA outpatient treatment records show that the Veteran had significant pain and that he was provided with a cane. However, there was no showing that instability or subluxation was severe on objective testing. The Veteran did exhibit significant pain and some limitation of function, however, the Veteran is already in receipt of a separate 10 percent disability rating for degenerative traumatic in his right knee. There is X-ray evidence in this case that demonstrates that the Veteran's right knee disability is manifested by arthritis. The criteria under Diagnostic Codes 5003 and 5010 apply when limitation of motion would be noncompensable under a limitation of motion code. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. The Veteran's right knee disability is noncompensable under Diagnostic Codes 5260 and 5261, as his range of motion is well beyond required flexion limited to 60 degrees and extension limited to 5 degrees, even when considering Deluca factors. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. An increased 20 percent disability rating is not warranted unless there is X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the evidence does not show that the Veteran's arthritis involves two or more major joint groups. Therefore, a disability rating in excess of 10 percent for right knee arthritis is not warranted. The Board also finds that Diagnostic Code 5256 (ankylosis of the knee) is not applicable here, as the medical evidence does not show that the Veteran has any ankylosis of the right knee. Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage, however, rating the Veteran under this diagnostic code provision would not offer the Veteran a greater benefit as the maximum rating available is 10 percent. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2012). The Board has also considered whether a separate rating would be warranted for any scars of the right knee during this period. However, while the evidence during this period has shown that the Veteran had undergone arthroscopic knee surgeries, there are no findings with which to quantify the nature and severity of any residual scars. In sum, the Board finds that the weight of the credible evidence demonstrates that the Veteran's right knee disability does not warrant a rating greater than the 20 percent disability rating currently in effect. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. A separate disability rating greater than 10 percent for arthritis of the right knee is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evidence reflects that his symptoms have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. The Board has considered the statements of the Veteran as to the extent of his right knee symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must weigh his statements against the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Finally, a discussion as to whether the assignment of an extra-schedular disability rating is warranted is set forth in the final section of this decision below. Right Knee Disability from July 18, 2003, to September 11, 2003 During the time period captioned above, the Veteran's right knee disability was rated as 20 percent disabling under Diagnostic Code 5257, for other impairment of the knee; and separately rated as 10 percent disabling under Diagnostic Code 5010 for traumatic arthritis of the right knee. For the time period from September 12, 2003, to October 31, 2004, the Veteran was rated at 100 percent pursuant to 38 C.F.R. § 4.30 for convalescence, and there is no basis for assigning a higher rating during this period. A VA orthopedic consultation report dated in August 2003 shows that the Veteran continued to report experiencing marked pain in the right knee. The Veteran used a cane to support the right knee. Physical examination revealed that the right knee was larger than the left. He was able to fully extend and flex past 110 degrees. All ligaments were intact and nontender to stress. There was no tenderness to palpate about the knee. X-rays revealed marked narrowing of the lateral compartment. The diagnosis was moderate to marked degenerative joint disease of the right knee, particularly the lateral compartment. A letter from Dr. Bowen dated in August 2003 shows that the Veteran was given an impression of end stage right knee arthritis of the lateral compartment. A total knee replacement was planned. The Veteran underwent a right total knee replacement on September 12, 2003. As noted above, during the period from July 18, 2003, to September 11, 2003, the Veteran's right knee was rated as 20 percent disabling under Diagnostic Code 5258 which is the maximum available for other impairment of the knee. As such, a higher disability rating under this diagnostic code provision is not warranted. In considering the applicability of other diagnostic code provisions that would possibly allow for a higher disability rating, the Board finds that Diagnostic Code 5256 (ankylosis of the knee) is not applicable as the medical evidence does not show that he had ankylosis of the right knee. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2012). Additionally, the Veteran was assigned a separate 10 percent disability rating for degenerative traumatic in his right knee. The X-ray evidence confirms that the Veteran's right knee disability is manifested by arthritis. The criteria under Diagnostic Codes 5003 and 5010 apply when limitation of motion would be noncompensable under a limitation of motion code. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. The Veteran's right knee disability is noncompensable under Diagnostic Codes 5260 and 5261, as his range of motion continued to be beyond the required flexion limited to 60 degrees and extension limited to 5 degrees, even when considering Deluca factors. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. An increased 20 percent disability rating is not warranted unless there is X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the evidence does not show that the Veteran's arthritis involves two or more major joint groups. Therefore, a separate disability rating in excess of 10 percent for right knee arthritis is not warranted. The Board has also considered whether a separate rating would be warranted for any scars of the right knee during this period. However, as was the case above, the evidence during this period has not shown findings with which to quantify the nature and severity of any residual scars. In sum, the Board finds that the weight of the credible evidence demonstrates that the Veteran's right knee disability from July 18, 2003, to September 11, 2003, warranted not more than the currently assigned 30 percent disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A separate disability rating greater than 10 percent for arthritis of the right knee is also not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. As noted above, consideration has been given to the assignment of additional "staged ratings," however, in the present case, the Veteran's symptoms remained relatively constant throughout the course of the period captioned above and, as such, additional staged ratings are not warranted. The Board has considered the statements of the Veteran as to the extent of his right knee symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must weigh his statements against the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Finally, a discussion as to whether the assignment of an extra-schedular disability rating is warranted is set forth in the final section of this decision below. Right Knee Disability from November 1, 2004 Beginning on November 1, 2004, the Veteran's right knee disability was rated as 60 percent disabling under Diagnostic Code 5055, for knee replacement (prosthesis). Under this diagnostic code provision, for one year following the prosthetic replacement of a knee joint, a 100 percent disability rating is assigned. This was the case here as the Veteran was assigned a 100 percent disability rating from September 12, 2003, to October 31, 2004. Thereafter, a 60 percent disability rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, the disability is to be rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula). Diagnostic Code 5055 provides that the minimum rating for a knee replacement is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2012). As 60 percent disability rating is the maximum possible single schedular rating under Diagnostic Codes 5003 and 5256-5263, rating under any one of those diagnostic code provisions would not afford the Veteran a higher disability rating from November 1, 2004. In determining whether the Veteran could be entitled to a higher combined rating under these criteria, the Board must consider the amputation rule, which states that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The rating schedule establishes that, with regards to a lower extremity, an amputation at the middle or lower third of the thigh is assigned a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5162. Amputation of a leg with defective stump and thigh amputation recommended, or where not improvable by a prosthesis controlled by natural knee action may also be assigned a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5163, 5164. In order to have the 80 percent disability rating available under Diagnostic Code 5161, the Veteran's disability would have to be comparable to amputation of the thigh at the upper third, one-third of the distance from perineum to knee joint measured from the perineum. 38 C.F.R. § 4.71a, Diagnostic Code 5161. A VA spine examination report dated in June 2004 shows that the Veteran reported a great deal of improvement and less pain in the right knee. Physical examination of the right knee revealed a well healed anterior scar that was consistent with the surgery. The scar was not tender or cosmetically disfiguring and did not interfere with function. Muscle development above and below the knee was good. He had full extension and approximately 95 to 100 degrees of flexion of the right knee. The diagnosis was total knee replacement, right knee as a treatment of posttraumatic degenerative arthritis of the knee. During his September 2006 hearing, the Veteran described experiencing increased pain, weakness, and instability of the right knee. He added that he required the use of a cane for ambulation. A VA examination report dated in March 2007 shows that the Veteran reported experiencing soreness and weakness of the right knee, but not the prior level of pain. Physical examination revealed that he walked with a limp, not bending the right knee. There was a well healed surgical scar. Range of motion was from zero to 85 degrees with no signs of sepsis, subluxation, or instability. Quadriceps were atrophied on the right side as compared to the left. He exhibited weakened movement, excess fatigability, and incoordination following one time use. The weakness was said to significantly limit his functional ability at all times. He did not describe flare-ups, but was weakened to the point that he was barely able to get around due to poor control of his right leg. There was no instability. X-rays revealed well-seated total knee arthroplasty in place without sign of problems, loosening, or other abnormality. The impression was status post right total knee arthroplasty. He used a cane, but could walk a few steps without it. He did not work, and his activities were limited mostly to sedentary activities. A VA joints examination report dated in April 2008 shows that the Veteran reported continued to walk with a cane. Physical examination revealed that the right knee was slightly larger than the left but there was no effusion, heat, or redness. There was a nine inch vertical scar extending from just above the knee to just below the patella. The scar was unremarkable and not tender. There was no tenderness to percussion or palpation of the knee. There was no lateral instability. Range of motion was from zero to 90 degrees because of pain. After three repetitions, there was no change in range of motion due to pain, spasm, or tenderness. The most recent X-ray of the right knee, in March 2007, showed a total arthroplasty in satisfactory position with no evidence of loosening. The diagnosis was status post total knee replacement on the right. The Veteran did not have flare-ups, but rather daily chronic symptoms. A VA examination report dated in January 2012 shows that the Veteran reported that he had not had much trouble of the right knee since the total right knee replacement surgery. Physical examination revealed zero degrees of extension and 120 degrees of flexion with no objective evidence of painful motion. There was no additional limitation of motion following repetition. There was functional impairment of the right lower extremity, with less movement and instability. There was no tenderness. There was a surgical scar, however, it was not painful or unstable, and the total area did not exceed 39 square meters or six square inches. There was a one half inch leg length discrepancy, and the Veteran used a cane for ambulation. X-rays revealed no arthritis or patellar subluxation. The Veteran's right knee impacted his ability to work in that he could not squat, kneel, or climb. There was no incoordination, excess fatigue, or weakness with movement or following repetitive motion. There were no flare-ups observed. The examiner opined that the right knee disability would not prevent gainful employment in a sedentary type job. In an addendum dated in February 2012, the VA examiner added that all surgical procedures cause some tissue damage, and that the Veteran did have some residuals of heat and cold sensitivity, but the scar was said not to limit motion. A VA examination report dated in May 2012 shows that it was reiterated that the Veteran did not have additional conditions that impacted his ability to work that were not previously addressed. In this case, a preponderance of the evidence is against a finding that the Veteran's right knee disability is comparable to amputation at the upper third of the thigh. Based on the affected body parts, it is at most comparable to amputation of the lower third of the thigh, which only warrants a 60 percent disability rating. In this regard, the evidence since the Veteran's right total knee replacement surgery has shown that he has reduced pain, and that while he did weakness, fatigability, and incoordination requiring the use of a cane, this did not rise to the level of an amputation at the upper third of the thigh. Thus, as the provisions of 38 C.F.R. § 4.68 limit the combined rating for the Veteran's residuals of a right knee disability to 60 percent, the currently assigned 60 percent disability rating is the maximum schedular rating that can be assigned. Therefore, as a matter of law, a schedular rating in excess of 60 percent is not warranted for residuals of a right total knee arthroplasty from November 1, 2004. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has also considered whether a separate disability rating may be assigned for a residual scar of the Veteran's right total knee replacement surgery under 38 C.F.R. § 4.118. However, in the Veteran's case, his residual scar from the previous surgery has consistently been reported as well healed with no evidence of any disablement. In June 2004, a well healed anterior scar that was consistent with the surgery was noted. The scar was not tender or cosmetically disfiguring and did not interfere with function. In March 2007, the scar was said to be well-healed. In April 2008, a nine inch vertical scar was described extending from just above the knee to just below the patella which was unremarkable and not tender. In January 2012, the surgical scar was described as not painful or unstable, and the total area did not exceed 39 square meters or six square inches. As such, a separate compensable disability rating for the Veteran's residual scarring is not warranted. The Board has considered the statements of the Veteran as to the extent of his right knee symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must weigh his statements against the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. As noted above, consideration has been given to the assignment of additional "staged ratings," however, in the present case, the Veteran's symptoms remained relatively constant throughout the course of the period captioned above and, as such, additional staged ratings are not warranted. Finally, as noted, a discussion as to whether the assignment of an extra-schedular disability rating is warranted is set forth in the final section of this decision below. Increased initial disability rating under 38 C.F.R. § 3.321(b) and TDIU prior to November 1, 2004, under 38 C.F.R. § 4.16(b) The Veteran asserts that he is entitled to an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, based on extra-schedular consideration under 38 C.F.R. § 3.321(b)(1), and to a TDIU prior to November 1, 2004, under 38 C.F.R. § 4.16(b). The August 2009 Joint Motion For Remand that was granted by the Court indicated that the Board must consider whether the Veteran's increased rating claim and claim for a TDIU prior to November 1, 2004, warranted referral; for extra-schedular consideration under 38 C.F.R. § 3.321(b) and 4.16(b). In December 2012 pursuant to the Board's October 2010 remand, the agency of original jurisdiction considered whether the case should be referred for a determination of whether the assignment of extra-schedular disability ratings are warranted under 38 C.F.R. § 3.321(b) and 4.16(b). The agency of original jurisdiction found that the case should be referred and forwarded the claims file to the Director of Compensation and Pension Service. In January 2013, the Director of Compensation and Pension Service reviewed the evidence in the claims file and noted that the record presented evidence of an exceptional or unusual disability picture such as marked interference since 1996, but the disability picture did not render the rating schedule criteria inadequate. During the periods of June 15, 1998, to September 26, 2001; December 1, 2001, to July 17, 2003; and July 18, to September 11, 2003, the Veteran was awarded the maximum disability rating allowed under Diagnostic Code 5010 and Diagnostic Code 5258, which rendered his disability picture inadequate. Therefore, the current disability ratings adequately addressed the severity and symptoms of his service-connected right knee disability. The record also did not present evidence that the service-connected right knee disability prevented employment, as the record shows that he had been capable of performing sedentary employment since 1996. The Director of Compensation and Pension Service concluded that the evidence in its entirety does not present evidence of an exceptional of unusual disability picture which renders the rating schedule criteria inadequate; and also does not present evidence that the service-connected right knee disability renders the Veteran unable to secure and maintain substantially gainful employment. As such, it was concluded that entitlement to an increased disability rating on an extra-schedular basis during the periods of: June 15, 1998, to September 26, 2001; December 1,2001, to July 17, 2003; and July 18, to September 11,2003; and to a TDIU were denied. The regulations in question provides that ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b), 4.16(b). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. This task is to be performed by the RO or the Board. Id. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). As noted previously, the agency of original jurisdiction forwarded the claims file to the Compensation and Pension Service Director; that is, the case was referred to the Director for consideration of entitlement to an extra-schedular rating for the Veteran's service-connected right knee disability and for consideration of a TDIU. As set forth above, this action presupposes that the first two Thun elements were met. That is, the agency of original jurisdiction determined that the Veteran's disability presented such an exceptional disability picture that referral was appropriate. The claim cannot reach the third Thun element without the first two being established. Thus, the agency of original jurisdiction impliedly determined that the first two Thun elements were met when the case was referred to the Compensation and Pension Service Director. (The Board notes that the findings of the agency of original jurisdiction concerning the first two Thun elements are not binding on the Compensation and Pension Service Director or the Board. Anderson, 22 Vet. App. at 428.) Here, the Veteran's case was referred to the Compensation and Pension Service Director who determined that the Veteran was not entitled to a higher disability rating for the right knee disability under 38 C.F.R. § 3.321(b), and that he was not entitled to a TDIU under 38 C.F.R. § 4.16(b). Because the case has already been referred to the Compensation and Pension Service Director, there is effectively no longer any remaining allegation of error of fact or law concerning the claim on appeal. That is, the Board has no authority to award a higher rating on an extra-schedular basis or compel the Compensation and Pension Service Director (or the Under Secretary for Benefits) to do so. When there is no remaining allegation of error of fact or law concerning an appeal, the Board may dismiss the claim. See 38 U.S.C.A. § 7105(d)(5) (West 2002). To explain further, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the matter when it reviewed and affirmed the Court's Thun decision. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Significantly, the Federal Circuit's Thun decision was also subsequent to the Court's Anderson decision. The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the Compensation and Pension Service Director have the authority to award an extra-schedular rating." Thun, 572 F.3d at 1370 (emphasis added). The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extra-schedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extra-schedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extra-schedular rating 'to accord justice.'" Id. The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the Compensation and Pension Service are the only individuals authorized to assign an extra-schedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extra-schedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review. "If the regional office or the Board makes factual findings adverse to the claimant with regard to the extra-schedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. Given the Federal Circuit's interpretation of the extra-schedular provisions of 38 C.F.R. § 3.321(b), only the Compensation and Pension Service Director or Under Secretary for Benefits have the authority to award an extra-schedular rating. The Board possesses no such authority be it in the first instance or any instance. The Court, in Anderson, indicated that the Board may have purview over the third Thun element. See Anderson, 22 Vet. App. at 428-29. However, as noted previously, Anderson was decided before the Federal Circuit affirmed the Court's Thun case and interpreted its meaning as well as that of 38 C.F.R. § 3.321(b). The concurrence opinion in Anderson, although addressing a different aspect of the extra-schedular process, provided some insight into why the Federal Circuit's holding is the appropriate result. The concurrence noted that the delegation of authority for the Director of Compensation and Pension Service to assign an extra-schedular rating is appropriate, given that the Director of Compensation and Pension Service has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations." Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100). "This makes the Director of Compensation and Pension Service uniquely suited to determining what extraschedular rating level is warranted. On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule." Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)). The role of the Board is to apply the laws and regulations to the facts of the case. See 38 U.S.C.A. § 7104 (West 2002). The provisions of 38 C.F.R. § 3.321(b) allow that an extra-schedular rating will be assigned so as to "accord justice." Justice is "the principle or ideal of moral rightness." Webster's II New Riverside University Dictionary 659, 660 (1988). The Board, however, does not address such matters except in the limited application of the first two steps as set forth in Thun. The authority to decide the equitable question set forth in the third step in Thun--the assignment of ratings necessary to accord justice--is entrusted to the Director or Under Secretary, not the Board. Cf. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (only the Secretary, and not the Court or the Board, has the authority to award equitable relief under 38 U.S.C.A. § 503(a)). In sum, with respect to the assignment of an extra-schedular disability rating to "accord justice" (i.e. equity), only the Under Secretary for Benefits and the Compensation and Pension Service Director have been delegated the authority to award the extra-schedular disability rating. Thun, 572 F.3d at 1370. In the Veteran's case, because the Board does not possess the authority to make an equitable award of an extra-schedular disability rating, there is no allegation of error of fact or law concerning this appeal over which the Board has jurisdiction, and the Board finds that the appeals as to extra-schedular disability ratings for the right knee disability and TDIU, under 38 C.F.R. §§ 3.321(b) and 4.16(b), respectively, must be dismissed. See 38 U.S.C.A. § 7105(d)(5). ORDER An increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, currently rated 60 percent disabling, is denied. The appeal as to entitlement to a TDIU prior to November 1, 2004, based on extra-schedular consideration under 38 C.F.R. § 4.16(b), is dismissed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs