Citation Nr: 1315580 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 07-30 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active service from April 1986 to December 1995. This matter on appeal before the Board of Veterans' Appeals (Board) arises from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, in pertinent part, the RO increased the previously assigned noncompensable disability rating (under Diagnostic Code 5299-5257) for the service-connected right knee disability to 10 percent (under Diagnostic Code 5299-5260), effective from June 7, 2006. Also, the RO confirmed and continued a previously assigned 40 percent rating for the Veteran's service-connected lumbar spine disability. In June 2009, the Veteran testified during a videoconference hearing before a Veterans Law Judge (VLJ) who has since retired from the Board; a transcript of that hearing is of record. In August 2009, the Board remanded this matter for additional development of the record. In a March 2011 decision, the Board, in pertinent part, denied a rating in excess of 10 percent for a right knee disability and denied a rating in excess of 40 percent for a lumbar spine disability. The Board remanded the other issues on appeal (entitlement to a separate compensable rating for radiculopathy of the left lower extremity; and, entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). The Veteran subsequently appealed the Board's decision with regard to the rating in excess of 10 percent for a right knee disability to the United States Court of Appeals for Veterans Claims (Court). In a November 2011 Order, the Court granted a Joint Motion for partial remand vacating the Board's decision as to the claim for a rating in excess of 10 percent for a right knee disability and remanding this matter to the Board for compliance with instructions in the Joint Motion. As the parties to the Joint Motion indicated an intent not to disturb the Board's March 2011 decision with respect to the denial of a rating in excess of 40 percent for the service-connected lumbar spine disability, the appeal as to the remaining issue of a rating in excess of 40 percent for a lumbar spine disability was dismissed by the Court. In an April 2012 letter, the Veteran was notified that the VLJ who conducted the June 2009 hearing was no longer with the Board and he was afforded the opportunity to present testimony at another Board hearing. Later that same month, the Veteran provided a written response in which he declined to appear at another hearing and requested that his case be considered based on the evidence of record. The claim was remanded in September 2012 and February 2013 for additional development of the record. Lastly, the prior claims for a separate compensable rating for radiculopathy of the left-lower extremity and entitlement to a total disability rating based on individual unemployability were remanded by the Board in March 2011 and currently remain pending at the RO/Appeals Management Center. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The service-connected right knee disability has been variously diagnosed as patellofemoral syndrome, sprain/strain, and dislocated patella, and chondromalacia patella; and, it is manifested by flexion to at least 90 degrees and extension limited to zero degrees, with complaints of pain on motion; and, with, occasional slight instability, and tenderness with an osteophyte formation shown on x-ray; however, there is no additional functional limitation shown during flare-ups or after repetitive use, and neither ankylosis nor cartilage impairment has ever been demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected right knee disability on the basis of painful motion have not been met at any time during the appeal period. 38 U.S.C.A. § 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 2. The criteria for the assignment of a separate 10 percent rating, but not higher, for slight instability of the right knee, associated with the service-connected right knee disability are met. 38 U.S.C.A. § 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran filed his claim for an increased rating in June 2006 and the RO responded with a duty-to-assist letter the following month in July 2006. In that initial July 2006 letter, the RO provided the Veteran with notice of all five elements of a service connection claim, including how to substantiate a claim for increase, what evidence VA would obtain on behalf of the Veteran and what evidence and information the Veteran should provide; and, notice of how VA determines the disability rating and effective date once service connection has been established. The Veteran was afforded a VA examination in August 2006 to assess the severity of the right knee disability. In a September 2006 rating decision, the RO granted an increase to 10 percent for the service-connected right knee disability, effective from June 7, 2006. The Veteran disagreed with that determination, and this appeal ensued. In another duty-to-assist letter sent to the Veteran in July 2008, the Veteran was provided notice of the specific rating criteria pertinent to rating knee disabilities. Furthermore, additional duty-to-assist letters were sent to the Veteran in September 2009 (after the Board's August 2009 remand) and October 2012 (after the Board's September 2012 remand). The claim was thereafter readjudicated by way of a December 2012 supplemental statement of the case (SSOC). In the February 2013 remand, the Board directed the RO to obtain records directly from the Social Security Administration (SSA), to include copies of any determination on a claim for disability benefits as well as any re-adjudications from that agency as well as the records, including medical records considered in adjudicating/re-adjudication the claim. In February 2013, the SSA records were received and associated with the claims file. With regard to VAs duty to assist the Veteran in the development of his claim, the RO obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations to assess the severity of the right knee disability in August 2006, January 2010, April 2011 and November 2012, and afforded the Veteran the opportunity to give testimony before the Board. The medical examination reports, when considered collectively, are adequate as they are based on, with respect to all but the August 2006 report, a review of the claims file, a physical examination, and as information was provided that is sufficient to allow the Board to render an informed determination. All known and available records relevant to the service-connected right knee disability issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. A review of the Veteran's Virtual VA Folder reflects that additional VA treatment records were added to the claims file in October 2012. Those records have been carefully reviewed, and the relevant records will be discussed below. Finally, the agency of original jurisdiction (AOJ) substantially complied with the August 2009, September 2012 and February 2013 remand orders and no further action is necessary in this regard. Specifically, the RO obtained all outstanding VA treatment records as evidenced in the Veteran's Virtual VA Folder. In addition, the RO sent the Veteran a post-remand duty-to-assist letter requesting any additional evidence in support of his claim; and, the Veteran was afforded a VA examination to address the severity of the right knee disability, and in particular, to determine all impairments of the right knee. The examiner specifically indicated that current findings did not show ANY form of arthritis. The examiner confirmed this finding with an MRI study, and concluded that previous x-rays were erroneously interpreted. Nonetheless, even assuming arguendo, that the Veteran does have the osteophyte as noted on the previous x-ray, the ultimate result in this case remains the same for the reasons set forth below. In essence, the Veteran's current right knee disability is rated as 10 percent disabling based on noncompensable limitation of motion, without arthritis. If arthritis is conceded, the rating would not change because the Veteran's limitation of motion is noncompensable, as will be discussed in detail below. As the remand directives were accomplished, there has been substantial compliance with the Board's remands. See D'Aries v. Peake, 22 Vet. App. 97, 106 (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). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Increased Rating The Veteran seeks an increased disability rating (higher than 10 percent) for the service-connected right knee disability. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, in all increased rating cases, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006). Regarding orthopedic disabilities, in determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2011). Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Other rating criteria pertinent to the knee are potentially applicable in this case. Under 38 C.F.R. § 4.71a , Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under 38 C.F.R. § 4.71a , Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "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. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). Historically, service connection for a right knee disability was established pursuant to an October 1998 Board decision. In a November 1998 rating decision, the RO assigned an initial noncompensable disability rating for the service-connected right knee disability under Diagnostic Code 5299-5257. The basis for the rating and diagnostic code came from the results of a March 1996 VA examination which provided a diagnosis of patella femoral syndrome. The rating decision explained that the Veteran's disability, which was not specifically listed in the rating criteria, did not produce instability or subluxation and therefore a noncompensable rating was assigned pursuant to Diagnostic Code 5299-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 5257 is used to evaluate "other impairment of the knee" in terms of subluxation and/or lateral instability of the knee. Although the examination report did not show instability or subluxation of the knee, the RO determined that the Veteran's service-connected disability could not be more accurately rated on any other diagnostic code pertaining to the knee. The Veteran submitted a claim for increase in June 2006. A review of the evidence reveals no complaints of right knee symptomatology in 2005. The Veteran submitted a statement in August 2006 indicating that his right knee was "locking up." He also submitted lay statements in August 2006 attesting to the pain experienced by the Veteran. A VA examination report from August 2006 provided a diagnosis of sprain/strain of the right knee with noncompensable limitation of motion with subjective complaints of severe pain on motion. The Veteran reported flare-ups of pain that went from a 4/10 to a 6/10 that usually occurred on a weekly basis, provoked by prolonged standing and walking. He used no knee support. Associated symptoms included giving way, weakness, and stiffness, but no swelling. He reported being incapacitated for 25 days of the year due to a combination of knee and back pain, and having to take days off from work due to the pain. However, it was noted that no physician had provided a written prescription for complete bed rest in the past 12 months or so. The Veteran was independent in all basic activities of daily living. He walked slowly with an antalgic gait and limited endurance. He reported that any physical exertion to the low back or right knee would most likely provoke his flare-up symptoms. Examination showed no evidence of deformity, crepitus, or effusion. Patellar tracking was normal. The right knee had a range of motion of 120 degrees in flexion and full extension at 0 degrees. Medial/lateral collateral ligament testing, in neutral and 30 degrees of flexion, was negative. Anterior/posterior cruciate ligaments, including Lachman and drawer tests, were negative. McMurray's test also was negative. Manual muscle testing was normal in the quadriceps and hamstrings. No sensory deficit was detected in this region. Repetitive movement was performed and showed no change in range of motion. The Veteran exhibited grunting and muscle guarding in his knee throughout the range of motion testing due to pain. The Veteran was unable to stand on his toes or heels, claiming pain in his knee and back. He was unable to squat, claiming pain in his back. He was able to walk while using a straight cane for support. Any undue physically exerting activity requiring his back and right knee would most likely provoke his flare-up symptoms, but did not limit him from any occupational opportunity. An X-ray of the right knee revealed no osseous or articular abnormalities, fracture, or dislocations. The diagnosis was right knee strain/sprain. There was no finding of instability on examination. The examiner indicated that there could be a significant change with respect to limitation of motion during a flare-up but the degree could not be stated without undue speculation. Pursuant to a September 2006 rating decision, the RO increased the previously assigned noncompensable disability rating (under Diagnostic Code 5299-5257) for the service-connected right knee disability to 10 percent (under Diagnostic Code 5299-5260), effective from June 7, 2006. 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 diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In the September 2006 rating decision, the RO explained that because the Veteran had no instability shown on examination, and because the Veteran's disability of sprain/strain of the right knee was not specifically listed in the rating schedule, it was most appropriate to rate the knee disability by analogy under Diagnostic Code 5299-5260 based on painful, noncompensable limitation of motion; and, presumably, the guidance provided by 38 C.F.R. § 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran appealed the September 2006 rating decision that assigned the 10 percent rating for the service-connected right knee disability, asserting that a rating in excess of 10 percent is warranted for the service-connected right knee disability. At his June 2009 video conference, the Veteran testified that he only has pain in his right knee when he experiences a flare-up, which occurs when the knee pops out of place. The Veteran testified that his right knee often pops and buckles causing him to fall. The Veteran testified that the knee was then sore and useless for about 3 to 4 weeks after that. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. Following the hearing, the case was remanded in order to afford the Veteran a VA examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Veteran's spine was examined in August 2009, but that examination report also provides additional medical evidence relative to the Veteran's knees. Regarding the knees, the examiner first pointed out that since the Veteran's last knee examination (which was for the left knee only) in October 2007, the Veteran had not had any treatments or evaluations for his knee condition. The Veteran denied knee pain except during flare-ups which occurred every two months due to unknown precipitating factors with swelling when the knee "pops out of place," with a "knife-like" pain. According to the Veteran this could happen with either knee. The flare-ups reportedly subsided in 3-4 days by applying ice periodically. The examination report noted that the Veteran had functional limitations, but these were as a result of his back disability, and included needing assistance with putting his shoes on and off, and using a chair to lift and stand. The Veteran also used a cane to ambulate due to back difficulties. The Veteran's knee condition did not affect his daily routine or activities. On examination of the right knee there was no swelling. There was tenderness on palpation of the patella tendon and on the lower pole of the patella. Extension was 0 degrees and nonpainful in both knees which did not change after repetition. Active flexion in the right knee was 0 to 30 degrees with groaning throughout which increased to 0 to 50 degrees after repetition with continued groaning throughout. Passively, flexion in both knees was 0 to 140 with groaning at the end of the range. There was no ligamentous instability of either knee. McMurray's test was negative bilaterally. The Veteran could stand and transfer independently. He refused to stand on one leg without his cane. He refused to heel or toe walk for fear of causing increased back pain. The diagnosis was right knee strain/sprain, and torn medial meniscus of the left knee. With regard to the Veteran's active limitation of flexion to 30 degrees, the examiner noted that the Veteran's limited active knee range of motion on examination was inconsistent with the Veteran's ability to sit with his knees flexed at 90 degrees; and, the examiner noted that a knee strain or sprain would not restrict active knee flexion to less than 90 degrees. The examiner agreed that the Veteran could have a flare-up of knee pain which could result in additional limitation of motion, but he was unable to estimate this additional functional loss during a flare-up without resorting to speculation. At a VA examination in January 2010, the Veteran reported pain with weight-bearing. He also reported flare-ups occurring 3 to 4 times a year. Precipitating factors were uncertain. Duration of a flare-up was 4 to 5 days. He reported the knee popping in and out. He reported being unable to squat or climb. He used a cane as an assistive device. He previously had a left knee brace, but could not locate it. Examination showed no swelling. The range of motion for the right knee was 0 degrees in extension and 105 degrees in flexion. The Veteran demonstrated guarding throughout the examination due to pain. He reported pain throughout the motion. No additional limitation of motion after repetitive motion was detected. There was tenderness of the medial joint line. Lachman's testing was negative. He was felt to have 2+ lateral laxity/instability with the knee in 30 degrees of flexion. An X-ray showed a small marginal osteophyte of the medial patella; otherwise, the X-ray was unremarkable. The diagnosis was patella femoral syndrome of the right knee with slight lateral laxity/instability. The examiner indicated that the Veteran's back and knee would not preclude sedentary work. He further indicated that the instability in the right knee was slight based on clinical examination. At a VA general medical examination in April 2011, the Veteran reported that his right knee disability had gotten worse over the prior 5 months. The Veteran had no history of right knee surgery, injections, or physical therapy. The Veteran reported pain diffusely with constant intensity of 8. The Veteran reported occasional popping and some stiffness, but no swelling. The Veteran's right knee reportedly felt weak and unstable. The Veteran reported flare-ups three times per year, but does not know any precipitating or aggravating factors. During a flare-up, however, the pain intensity reportedly stayed at an 8 and lasted for a couple of days. The Veteran did not use a right knee brace. The Veteran reported that sometimes he needed help putting on his shoes, but he had no trouble with other activities of daily living (ADL), and, significantly, the Veteran's occasional need with help putting his shoes on was also related to the service-connected back disability and not solely due to the right knee disability. Functional limitations with the right knee included difficulty getting into and out of the car, difficulty with prolonged walking and long distance driving. The Veteran was not working. The Veteran used a cane for balance. When the examiner attempted to examine the Veteran's right knee in the laying down position on the examining table, the Veteran did not move or flex the leg at all. However, the examiner specifically noted that when the Veteran was sitting up on the exam table with his knees hanging down, he could flex to at least 90 degrees, but did not move or make effort to flex the knee. There was no swelling or redness or warm feeling noted on examination, although the Veteran complained of tenderness in the lower part of the knee. The examiner was unable to check the instability as the Veteran complained of pain moving the knee. The examiner specifically noted no deformity, no malalignment, no drainage, no tenderness, no edema, no redness, no heat, no spasms, no painful motion, no abnormal movement, no guarding of movement, no fatigue, no lack of endurance, no weakness, no atrophy, no incoordination, no instability, and no pertinent abnormal weight bearing, except as noted above. Additionally, there was no loss of function with repetitive use. An x-ray of the right knee was negative, noting no change from October 2006. The examiner's impression was recurrent dislocation of the patella, bilaterally. The examination once again noted that the Veteran's x-rays were negative, but on examination he had excessive guarding with both knees. There was mild functional limitation with physical type of activity that was required with walking, standing, bending, and squatting. The examiner noted that the Veteran had subjective symptoms of knee pain. On examination, the Veteran had more guarding which resulted in a limited examination, and, was as likely as not a manifestation of an apparent symptom magnification due to functional overlay. The examiner noted that the service-connected conditions of the back and knees, at least as likely as not, impact any physical type of activity that requires prolonged standing, sitting, walking, and lifting. He is able to do activities of daily living and drive short distances. In an October 2012 statement, the Veteran reported that he could no longer bend his right leg when in bed. The Veteran also reported that his primary care doctor told him that his MRI results revealed "extensive arthritis" in the right knee, according to the VAMC radiologist. A review of the Veteran's Virtual VA folder shows that VA outpatient treatment records from 2009 to October 2012 were associated with the claims file. In July 2010, the Veteran was treated for a sprained left knee. The Veteran reported, however, that both patellas dislocate and spontaneously reduce three to four times each year, with the left dislocating most often. The diagnosis was recurrent dislocation of the bilateral patella, worse on the left. At a September 2010 orthopedic clinic visit, the Veteran indicated that both his knees were feeling better; however, he complained of total body pain, including the neck, low back, left foot, bilateral knees and pretty much total body pain. The Veteran reported that he was trying to get on total disability and the examiner observed that the Veteran did not appear to be motivated to attempt to work. The examiner explained to the Veteran that a physician cannot stop the pain in someone with total body pain. A September 2011 entry notes that the Veteran was fitted for a right knee brace because of pain in the knees. The listed diagnosis was knee arthralgia. A September 2012 orthopedic surgery consult notes a chief complaint of "total body pain." The examiner noted that the Veteran's appointment was a follow-up for a fractured wrist that he sustained 4 months earlier. The Veteran complained of headaches, neck pain, low back pain, bilateral hip pain, bilateral knee pain and bilateral ankle pain. He told the examiner that he thought both of his knees needed to be replaced. The report also shows that the Veteran had applied for Social Security Disability and had been fighting for a long time to obtain these benefits. The examiner reviewed x-rays of the right wrist, cervical spine, lumbar spine and both knees, as well as MRI studies of the cervical and lumbar spine. With regard to the knees, the x-rays of the knees were normal, and the examiner indicated that the Veteran was certainly not a candidate for knee replacement surgery or any other type of knee surgery. The examiner concluded, in short, that the Veteran had total body pain. According to the examiner's experience with total body pain in a patient, nothing will help them other than them attempting to get control of the psychological issues, which are in play, and to learn to decrease pain to mind control. The examiner further indicated that no surgical procedure, injection, or oral medication will help them. The examiner recommended that the Veteran get on a program of meditation so that he could try to learn to control his total body pain through mind control. The examiner also indicated that the Veteran should, by all means, try to prevent becoming a drug addict. In April 2011, there was minimal swelling on the knee. In July 2011, the Veteran reported that his knee felt weak and varied terrain caused him to stumble and fall due to instability. At a VA examination in November 2012, the diagnosis was chondromalacia patella without degenerative joint disease. The Veteran continued to report flare-ups of pain and instability of the right knee. Right knee flexion was limited to 105 degrees, and there was no limitation of extension. There was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with 3 repetitions, with no objective evidence of painful motion. With regard to functional loss, the Veteran had less movement than normal in the right knee, but there was no weakened movement, no excess fatigability, no incoordination, no pain on movement, no swelling, no deformity, no atrophy of disuse, no instability of station, no disturbance of locomotion, and no interference with sitting, standing and weight-bearing. The Veteran did not have tenderness or pain to palpation at the joint line or soft tissues of the right knee. Muscle strength testing of the right knee was normal. Lachman test - to test for anterior instability, was normal on the right. Likewise, the posterior drawer test - to test for posterior instability was also normal. Application of valgus/varus pressure to the right knee in extension and 30 degrees of flexion was normal, showing no medial-lateral instability. The examiner noted no evidence or history of recurrent patellar subluxation/dislocation, to include on x-ray testing, or any meniscal condition or surgical procedure for a meniscal condition. Aside from the symptoms noted above, with regard to the right knee disability, the examiner noted retropatellar crepitance of the right knee. The Veteran used a cane for assistance. The examiner concluded that the Veteran had no objective evidence of painful motion. The examiner also noted that the previous diagnosis on the 2010 VA examination report mentioned degenerative joint disease (arthritis); however, the examiner indicated that the 2010 VA examiner got an erroneous x-ray reading because there is no degenerative joint disease based on the fact that 2012 x-rays showed no degenerative joint disease and a 2011 MRI study (which the examiner pointed out was much more accurate than an x-ray) also slowed no degenerative joint disease. The examiner confirmed a review of the Veteran's claims file A review of the SSA records reveals that the Veteran was awarded SSA benefits in January 2013 based on a primary diagnosis of depression with a secondary diagnosis of disorders of the back. The SSA acknowleged that these two disabilities caused severe impairment. In a prior unfavorable decision dated in June 2011, arthritis of the knee was listed as a "severe impairment" along with back problems, high blood pressure, depression, anxiety, hypertension, and hyperlipidemia. The decision did not indicate as to which knee it was referring. Information provided by the Veteran with regard to his claim for SSA benefits includes a form completed by the Veteran in August 2010 on which the Veteran describes a meniscal tear of the knee that occurred in July 2010. The Veteran further reported that he underwent surgery, was in a immobilized cast for six weeks, and was to undergo an additional surgery six months later. There was no indication as to whether the Veteran was referring to his left knee or his right knee. However, in an August 2010 statement, the Veteran reported to the SSA that his right knee was service-connected but it did not require surgery; and, if the swelling went down in his left knee, the doctor would set him up for surgery for the left knee. Thus, it appears that the Veteran's reports of a meniscal tear in July 2010 refer to the left knee. This is consistent with the VA records which note that in July 2010, the Veteran was treated for a sprained left knee. Moreover, as noted, more recent medical evidence of record shows that the Veteran does not have arthritis of the right knee. As such, the SSA records provide no insight into the severity of the service-connected right knee disability during the period covered by this appeal. In sum, the Veteran's right knee was examined at 5 VA compensation and pension examinations during the appeal period (8/2006, 8/2009, 1/2010, 4/2011, 11/2012). In each case, the Veteran was able to flex to at least 90 degrees. On examination in August 2009 the Veteran the Veteran tried to convince the examiner(s) that he could only flex the knee to 30 degrees at first, and then to 50 degrees with repetitive motion; however, the examiner observed that when the Veteran was sitting up on the exam table, his leg flexed to 90 degrees without complaints of pain during that time. Similarly, at the April 2011 examination, the Veteran refused to move his right leg during the range of motion examination when he was laying down on the examination table; however, the examiner observed that the Veteran was able to flex to at least 90 degrees while sitting up on the table with his legs hanging off, just as he was able to do in August 2009. These actions alone, raise questions as to the Veteran's credibility with regard to his level of pain and limitation of motion. In other words, when the examiners were actively attempting to measure the Veteran's knee flexion, the Veteran was attempting to demonstrate that he could either not move his knee at all, or could flex only to 30 degrees, or to 50 degrees after repetition; however, when the Veteran's knee flexion was not being actively examined, the Veteran was able to flex his right knee to at least 90 degrees, which was observed by the examiner simply through witnessing the Veteran sit up on the exam table with his legs hanging off the table. The examiner did not indicate that the Veteran was wincing or moaning, or complaining of knee pain during those times. These inconsistencies tend to show that the Veteran's statements regarding his level of pain and ability to move the knee on examination were exaggerated, and are therefore not credible. This is supported by the fact that the examiners have commented that the Veteran's subjective reports of the level of pain, instability, and overall disability picture are inconsistent with the objective findings. The examiners have specifically noted that there is no objective evidence of pain on motion. The April 2011 examiner described the Veteran's syndrome as a magnification of symptoms due to a functional overlay. Furthermore, the Veteran testified that he was told by his doctors that he needed right knee surgery; and, at a September 2012 VA orthopedic consult, he told the examiner that he thought he needed to have his knees replaced. However, the examiner specifically indicated that, with regard to the knees, the x-rays of the knees were normal, and that the Veteran was certainly not a candidate for knee replacement surgery or any other type of knee surgery. This consult report also identifies that the Veteran has a total body pain. In addition to his knees, the Veteran complains of pain in multiple joints, and the examiner essentially told the Veteran that there was no medical procedure or medication that could help him. The above evidence suggests that the Veteran's knee pain is related to psychological factors, which would also be consistent with the objective findings on examination. Even if the Veteran's statements were considered credible, they are heavily outweighed by the objective findings in this case. In other words, the Veteran indicates during an examination that he is only able to flex his knee 30 degrees; however, objectively, the examiner witnesses the Veteran actually flex the knee to 90 degrees in the sitting position without any evidence of pain, wincing, groaning, or other signs of discomfort. Also, while the Veteran states he has arthritis of the right knee, his assertions in this regard are not accorded any weight because the Veteran is not competent to diagnose arthritis, a disability that requires x-ray evidence interpreted by a radiologist and/or other medical professionals in order to be diagnosed. A VA examiner reviewed test results and indicated that the Veteran does not have arthritis. The competent and credible evidence in this case supports the assignment of the currently assigned 10 percent rating based on painful non-compensable limitation of motion. Regarding lateral instability and/or subluxation of the right knee, there is only one examination that provides objective findings of instability of the knee. The January 2010 examination report notes that the Veteran was felt to have 2+ lateral laxity/instability with the knee in 30 degrees of flexion. According to the examiner, an X-ray showed a small marginal osteophyte of the medial patella; otherwise, the X-ray was unremarkable. The diagnosis was patella femoral syndrome of the right knee with slight lateral laxity/instability. Although this finding was only objectively demonstrated at one knee examination, it cannot be discounted. Based on the above, the criteria for the assignment of a rating in excess of 10 percent are not met on the basis of limited motion with pain, including pain due to arthritis. The Veteran does not have compensable limitation of motion or compensation limitation of extension such that a compensable rating under Diagnostic Code 5260 or 5261 would apply in this case. Although the Veteran's examinations in August 2009 and April 2011 appear to provide initial findings of compensable limitation of motion, as noted above, the examiners subsequently concluded that the Veteran could passively flex to at least 90 degrees and no pain was noted with that degree of flexion. Similarly, the Veteran could extend his right knee to 0 degrees. Because motion of the right leg was from 0 to at least 90 degrees, and that corresponds to noncompensable limitation of flexion and extension, a disability rating in excess of 10 percent is not for assignment based on limitation of flexion or limitation of extension of the right knee. Although there must be consideration of whether there is additional limitation due to pain, the Veteran's subjective complaints in this regard are not credible. Moreover, the evidence of record does not show additional functional limitation due to pain, incoordination, repetitive use or fatigue. Similarly, a higher rating under Diagnostic Code 5256 is not applicable here because no ankylosis is shown. The Veteran does not have dislocated semilunar cartilage nor does he have removed semilunar cartilage. On examination, the Veteran was found not to have any abnormality of the right meniscus nor has his cartilage been surgically removed. While the Veteran reported that he experiences locking, popping and buckling of the knee, medical professionals have not found a meniscal or cartilage abnormality nor has his meniscus and/or cartilage been removed or repaired. The medical evidence is entitled to greater weight, because while the Veteran is competent to report that he experiences locking, popping and dislocation, he is not competent to diagnose a meniscal and/or cartilage abnormality as this is not subject to lay observation. Thus, the criteria pertaining to Diagnostic Codes 5258 and 5259 are not applicable here. Likewise, as there is no impairment of the tibia or fibula, a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5262, is not warranted. Finally, a rating under 5263 for genu recurvatum is likewise not warranted because this condition is not shown. In this case, the Veteran has been assigned a 10 percent disability rating based on non-compensable limitation of motion due to pain. The evidence of record during the entire appeal period demonstrates that the Veteran's flexion has been limited to, at most, 90 degrees with consideration of pain; and, extension is normal. The intent of the Rating Schedule is 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. As noted above, the VA examination in January 2010 created some confusion as to whether the Veteran actually has arthritis of his knee. The January 2010 examination report referred to an x-ray which apparently showed an osteophyte formation on the patella; however, a VA examiner in November 2012 clarified that a reading of that x-ray report was incorrect, and there was no osteophyte formation. The examiner indicated that this was confirmed by an MRI study obtained in 2011. Regardless of whether or not the Veteran has a diagnosis of arthritis in this case, the Veteran's right knee disability is already being rated as if the Veteran did have arthritis of the knee with noncompensable limitation of motion. In other words, there is no need to confirm whether the Veteran has x-ray evidence of arthritis, because the Veteran's current 10 percent rating is based on noncompensable limitation of motion anyway, and the rating would not change regardless of the development of arthritis of the right knee joint unless the Veteran's range of motion was limited to such an extent as to warrant a compensable rating in excess of 10 percent under the applicable rating codes, which in this case would be 5261 and/or 5262. Under Diagnostic Code 5003, arthritis is assigned a 10 percent rating when the joint involved exhibits noncompensable limitation of motion, as is the case here. In other words, the outcome would not be different regardless of whether the Veteran had a diagnosis of arthritis supported by x-ray evidence, because he is already being compensated as if he did have such a diagnosis. A confirmation of an arthritis diagnosis would not allow for a higher rating in this case. The Veteran's current rating is based on non-compensable painful motion, and a rating based on arthritis would be based on the same symptoms or manifestations in this case. The Veteran has reported pain on right knee motion, which is compensated by the 10 percent disability rating currently assigned. Although the Veteran maintains that his right knee pain has worsened over the years, the overall disability picture does not more nearly approximate the criteria for a rating in excess of 10 percent at any time during the appeal period under any of the knee codes as explained above. Pain has been considered when addressing limitation of motion; and, there is no additional limitation, weakness, fatigue, or lack of endurance after repetitive use, as shown on examination. While several examination reports indicate that additional information cannot be provided concerning any additional impairment on flare-ups without resorting to speculation, this does not render the examinations inadequate. The Veteran himself has reported that he has flare-ups of pain and that he experiences weakness. During the hearing he reported that when he fell, the knee would be sore and useless for about three to four weeks. Hearing transcript at p. 9. He also testified that the point at which the pain was debilitating was when the knee flares up when it pops out of place. Id. at 14. The Veteran himself has provided information concerning limitation on flare-ups which supports the currently assigned 10 percent evaluation for painful motion. The evidence does not show any additional limitation of motion on use and while the Veteran reports increased pain during flare-ups, such is contemplated by the currently assigned rating. The Board has considered whether staged ratings are warranted, but finds that the criteria for a higher evaluation are not met during any period of time that is covered by this claim. In addition, the VA examination reports are adequate for evaluating the level of disability as they were based on physical examinations and as sufficient information was provided to allow the Board to render an informed determination. Although the competent and credible findings do not support the assignment of a rating in excess of 10 percent for the Veteran's right knee disability on the basis of painful motion, a separate 10 percent disability rating may be assigned for slight instability of the right knee pursuant to Diagnostic Code 5257. Under 38 C.F.R. § 4.71a , Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The examination report of January 2010 clearly shows that the examiner found "slight" instability of the right knee on examination. Although instability was not demonstrated at any other examination during the appeal period, the findings nevertheless demonstrate that the Veteran's right knee exhibits some instability at least some of the time. Based on this finding, the assignment of a 10 percent disability rating under Diagnostic Code 5257 is warranted. A rating in excess of 10 percent is not assignable because there is no indication of more than slight instability. In fact, there is only one objective finding of instability on one examination of record, and that finding specifically described the instability as "slight" and no more. All other VA examinations of record specifically indicated that no instability was demonstrated on examination. Given that the January 2010 examiner found the observable instability to be "slight" and given that instability was noted only once in the record during a six year period, the criteria for a rating in excess of 10 percent are not met in this case. Although mindful of the Veteran's statements that his knee "pops out of place," his statements as to the frequency of this occurrence are not found credible given his inconsistent statements and exaggeration of symptoms as noted above. The issue of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1). There are three analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The level of severity and symptomatology of the Veteran's service-connected right knee disability are carefully compared with the established criteria found in the rating schedule. In this case, the criteria for rating arthritis, limitation of flexion of the knee and limitation of extension of the knee specifically contemplate the Veteran's symptoms, which include reported pain, stiffness and weakness, which ultimately result in limited motion. In addition, the Veteran has some instability of the knee, which is addressed by Diagnostic Code 5257. Thus, the Veteran's right knee symptoms and objective manifestations are addressed by the rating criteria under which such disabilities are rated. The Veteran's pain on motion has been considered in assigning the current rating. In this regard, lay statements from people who know the Veteran concerning generalized pain that he experiences have been considered. Similarly, the Veteran's instability is also considered in assigning the separate rating. The Veteran's pain on motion and instability are contemplated by the diagnostic criteria applicable to limitation of flexion, arthritis, and lateral instability. In sum, there are no additional manifestations of the Veteran's right knee disability that are not addressed by the rating schedule. The rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability and are adequate. Consequently, referral of this case for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App 111, 115-16 (2008). Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 10 percent for the service-connected right knee disability, on the basis of limitation of motion with pain, is denied. A separate disability rating of 10 percent, but no higher, for instability of the right knee, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs