Citation Nr: 1315816 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-07 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased rating for patellar chondromalacia of the left knee, rated 10 percent prior to April 9, 2012, and 20 percent from April 9, 2012. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from April 1991 to April 2001. He received the Purple Heart for his service. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied a rating in excess of 10 percent for the Veteran's left knee patellar chondromalacia. When the case was previously before the Board in June 2010, the issues of entitlement to a rating in excess of 10 percent for patellar chondromalacia of the left knee and entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) were remanded for additional development. When the case was most recently before the Board in October 2011, the issue of entitlement to a rating in excess of 10 percent for patellar chondromalacia of the left knee was again remanded for additional development. Also in October 2011, the Board granted an increased rating of 70 percent rating for the Veteran's service-connected PTSD. In a November 2011 rating decision, the RO implemented the Board's decision regarding the PTSD claim, and assigned the 70 percent rating for the Veteran's PTSD, making it effective the date of the original grant of service connection for PTSD. Although the Board's partial grant is not a full grant of the benefits sought on appeal, decisions of the Board are final unless reconsideration is ordered by the Chairman, the decision is revised because of clear and unmistakable error (CUE), or a timely notice of appeal is received by the United States Court of Appeals for Veterans Claims (the Court). 38 C.F.R. § 20.1100. Further, the Veteran has not expressed disagreement with the evaluation or effective date as determined by the RO in the November 2011 rating decision, and thus, that matter is not before the Board. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). In an April 2012 rating decision, the RO increased the rating for the Veteran's patellar chondromalacia of the left knee to 20 percent, effective April 9, 2012. As this is not the highest possible rating for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In April 2010 the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing held at the RO. In September 2012, December 2012, and February 2013 the Board notified the Veteran that the VLJ who conducted the April 2010 hearing was no longer employed at the Board and gave the Veteran the opportunity to request a new hearing. These letters were returned to the Board as undeliverable, but copies of each letter were also sent to the Veteran's representative. No response to these letters was received and neither the Veteran nor his representative has requested that another hearing be scheduled. The Court has stated that in the normal course of events, it is the burden of a claimant to keep VA apprised of his or her whereabouts. If he or she does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him or her. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). As such, the Board may proceed with the appeal. FINDINGS OF FACT 1. For the time period prior to April 9, 2012, the Veteran's patellar chondromalacia of the left knee was manifested by slight instability, objective evidence of painful and limited motion of the left knee no worse than from zero degrees extension to 95 degrees flexion; there is no evidence of arthritis, ankylosis, malunion of the tibia and fibula, or frequent episodes of "locking," pain and effusion into the joint. 2. For the time period beginning on April 9, 2012, the Veteran's patellar chondromalacia of the left knee was manifested by moderate instability; objective evidence of painful and limited motion of the left knee no worse than from zero degrees extension to 120 degrees flexion; there is no evidence of arthritis, ankylosis, or malunion of the tibia and fibula. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for patellar chondromalacia of the left knee prior to April 9, 2012, and to a rating in excess of 20 percent from April 9, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In VA correspondence dated in February 2007, the Veteran was informed of what evidence was required to substantiate his increased rating claim, and of his and VA's respective duties for obtaining evidence. Also, this notice informed the Veteran of the criteria for consideration in assigning an effective date and/or disability rating. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. In light of above, the content of the February 2007 notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA treatment records, VA examination reports, and the Veteran's statements in support of his claim. The Board has carefully reviewed the Veteran's statements and concludes that there has been no identification of further available evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain. With respect to the VA examinations of record, the Veteran was afforded VA examinations with respect to his claim in February 2007, January 2011, and April 2012 and an additional medical opinion was obtained in April 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that together the February 2007, January 2011, and April 2012 VA examination reports and April 2012 VA addendum opinion report are adequate. All examination reports reflect that the examiner reviewed the claims file, the VA examiners conducted an examination, and together, the examination reports provide the medical information addressing the rating criteria in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Consequently, the Board finds that the VA examinations are adequate. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) the duty to fully explain the issue or issues on appeal and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the Veteran was assisted at the Board hearing by an accredited representative from the Oregon Department of Veterans' Affairs. During the Veteran's hearing, the VLJ and the Veteran's representative asked the Veteran questions about the symptoms and severity of his left knee disability currently on appeal. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and that any error in notice provided during the Veteran's hearing constitutes harmless error. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its June 2010 and October 2011 remands. Specifically, the June 2010 Board remand instructed the RO to ask the Veteran to provide any medical records not already in the claims file and to schedule the Veteran for a VA examination to determine the current severity of his left knee chondromalacia. The October 2011 remand instructed to RO to contact the Veteran to request that he identify any outstanding treatment records and to obtain any such records which are identified, to include VA treatment records. The October 2011 remand also instructed the RO to afford the Veteran a VA examination to determine the nature and extent of his left knee disability, to include a determination of whether the Veteran has a diagnosis of arthritis of the left knee. In letters dated in June 2010 and January 2012 the RO/AMC sent the Veteran letters to his addresses of record and requested that he provide information and authorization to enable VA to obtain any additional evidence pertinent to his claim. The Veteran did not respond to either letter. In January 2012 it was determined that there were no outstanding VA treatment records. Moreover, VA examinations were obtained in January 2011 and April 2012, and an addendum opinion was obtained in April 2012. The Board finds that the RO has complied with the Board's instructions in that the January 2011 and April 2012 VA examination reports and April 2012 addendum opinion report substantially comply with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Factual Background Historically, the Board notes that service connection for patellar chondromalacia of the left knee was granted in a November 2004 rating decision. A temporary 100 percent rating was assigned from July 26, 2004, and an evaluation of 10 percent was under Diagnostic Code 5257, effective October 1, 2004. The Veteran filed the instant claim for an increased rating for his patellar chondromalacia of the left knee on January 31, 2007. As such, the rating period for consideration on appeal is from February 1, 2006. A September 2006 VA treatment record notes the Veteran's complaints of more left knee pain. It was noted that he uses his knee brace and ice. An October 2006 MRI of the left knee revealed a tear in the posterior horn of the medial meniscus, left knee. The tear was less well displayed than on prior examination. The cruciate ligaments were intact, as were the collateral ligaments. X-rays of the left knee from October 2006 reveal no fracture and no degenerative changes. A November 2006 VA treatment record indicates that physical examination notes that there was point tenderness and mild crepitus along the medial joint line. There was no swelling. Range of motion was mildly decreased. Motor strength was full (5/5) and sensation was intact. McMurray test was positive, as was anterior drawer test. The assessment was left knee medial meniscus tear, status post surgery repair with instability, still with tear posterior horn of medial meniscus. The February 2007 VA examination report notes that the left knee was very painful. The Veteran reported experiencing instability and collapsing, but no locking. He indicated that there is no numbness. He has subjective feelings of pain, weakness, and easy fatigue of the left knee. He has these symptoms most days. Flare-ups with activities bother his knees when standing, walking, driving, and laboring. Flare-ups happen most days. The Veteran had surgery in 2004 and it eliminated the locking problem, but he still has complaints of pain and instability. Objective examination revealed some limping. Left knee motion was from zero to 135 degrees. There was no increase in joint fluid of the left knee. Patellar pain and crepitation were mild in the left knee. Pain with movement was also mild in the left knee, but it occurred over the entire range of motion of the knee. Anterior tendons were not tender. There was tenderness over the medial joint line but not over the lateral joint line. Ligaments were noted to be normal. There was mild anterior cruciate ligament laxity at the left knee, but the ligament was intact. Anterior drawer sign allowed movement of 2 mm on the left. McMurray and Lachman tests were negative. Knee pain was mostly medial. The examiner stated that there was no arthritis. Based upon the Veteran's subjective symptoms, flexion is decreased by 40 degrees. Flare-ups in the left knee decrease flexion by 30 degrees. X-rays and MRI of the left knee reveal medial meniscus with obvious posterior tears; cruciate ligaments look okay. There is no arthritis. The assessment was left knee status post arthroscopy surgery (partial medial meniscectomy); continued pain and instability of the left knee diagnosed as torn medial meniscus. Patellar symptoms were noted in the past, but are now quite mild. A December 2007 VA treatment record notes that the Veteran was diagnosed with degenerative joint disease of the left knee. A February 2010 VA treatment record notes that the Veteran complained of left knee pain. It was noted that the Veteran was wearing a knee brace. There was no edema. An April 2010 VA treatment record notes that the Veteran had zero to 130 degrees of left knee motion. There was no effusion. There also was no varus/valgus or anterior/posterior instability. Patellofemoral crepitus was present, as was patellofemoral pain. McMurray's test was positive, but there was no lateral joint line tenderness. X-rays of the left knee were normal except for some lateral patella translation and slight lateral patella/intercondylar notch narrowing and early degenerative changes. The impression was probable recurrent or persistent tear of the medial meniscus with some early medial compartment chondrolysis of the left knee and lateral patellar compression syndrome. A May 2010 MRI scan of the left knee showed a small tear in the posterior horn of the medial meniscus and a clinically evident lateral patellofemoral articular chondrolysis, which the VA orthopedist felt is more likely the source of the Veteran's knee problems. It was felt that the Veteran had mild arthritis in his knee and minimal meniscus cartilage tear. The January 2011 VA examination report notes that the Veteran is working as a computer technician. The Veteran complained that his left knee keeps him from walking for more than 20 minutes and driving for about one hour due to pain. He uses a brace and sometimes uses a cane. He complained of his left knee collapsing, some locking, and instability that is mostly a feeling of weakness and wobble. He underwent left knee arthroscopy and partial meniscectomy of the left knee in 2004. Objective examination revealed that he was wearing a brace. Knee motion was from zero to 132 degrees on the left. Pain with motion was moderate. There was no increase in joint fluid. Patellar pain and crepitation were moderate. Anterior tendons were not tender. The medial joint line was tender but the lateral joint line was not tender. McMurray and Lachman tests are negative. There was no lateral instability or subluxation. Knee pain is mostly medial. Patellar pain is off and on, but was determined to be mild. X-rays were normal. The assessment was left knee status post arthroscopic surgery and partial meniscectomy in 2004; the left knee has continued with pain and instability, which is diagnosed as continued derangement of the medial meniscus, also diagnosed as mild continuing patellar chondromalacia. The examiner noted that working capacity is somewhat diminished by the left knee pain and instability. He is limited to fairly light work. He is able to do his computer work by being careful. An April 2012 VA examination report notes that the Veteran's recent X-rays do not support a diagnosis of arthritis of the left knee. The examiner further noted that the Veteran does not have a history of patellar subluxation; however, his knee disability, patellofemoral chondromalacia, does cause instability of his left knee. His knee does not lock since he had his meniscectomy in 2003. He experiences an effusion in his left knee on occasion, which is secondary to a medial meniscus tear, which was described as "new" on his MRI in 2010. It is not related to his current service-connected condition, patellofemoral chondromalacia. He does not have any flare-ups involving his left knee. He may develop a small effusion after stressful use that resolves very quickly with rest overnight. He does not have significant loss of function at this time. The examination report notes that the Veteran reported having knee pain and feelings that the left knee is unstable. The Veteran reported no flare-ups that impact the function of the knee. Range of motion testing of the left knee revealed flexion to 120 degrees with objective evidence of painful motion beginning at 120 degrees. Left knee extension was full, to zero degrees, with no objective evidence of painful motion. After repetitive use testing, the Veteran could flex his left knee to 120 degrees. After repetitive motion, extension of the left knee was full, to zero degrees. The examiner stated that the Veteran does not have additional limitation of range of motion of the left knee after repetitive use testing. However, the examiner stated that the Veteran does have functional impairment of the left knee in terms of less movement than normal. There is no functional loss, weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, and weight-bearing. Muscle strength testing was full on flexion and extension (5/5). Medial-lateral instability testing was not normal. Testing revealed zero to 5 mm of movement. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran has had a meniscal condition (semilunar cartilage condition). There was a meniscal tear with frequent episodes of joint effusion, but not frequent episodes of pain or joint locking. The Veteran had a meniscectomy and has residual signs and/or symptoms due to a meniscectomy. He has not had a total joint replacement. The Veteran uses a brace regularly. There is no X-ray evidence of patellar subluxation. A May 2010 report of MRI of the left knee reflects an impression of chondromalacia involving the lateral patellar facet and medial aspect of tibiofemoral joint; tear of the posterior horn of the medical meniscus; small effusion. The examiner opined that the Veteran's knee condition impacts his ability to work. The examiner stated that the Veteran's left knee disability causes him some limitation in function which will limit him in climbing stairs, hills, and ladders, walking longer than 30 minutes and kneeling. He is unable to run. Currently, he is a computer technician working for a school district in Oregon. With this position, he has to climb stairs which is somewhat difficult and this is helped with an offloading knee brace. An April 2012 addendum medical report notes that the Veteran has instability of the left knee due to his patellofemoral chondromalacia, and the symptoms of the instability are best described as moderate. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The Veteran's service-connected left knee patellar chondromalacia is rated as 10 percent disabling prior to April 9, 2012 and as 20 percent disabling from April 9, 2012, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for recurrent subluxation or lateral instability. Under Diagnostic Code 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability of the knee which is slight. A 20 percent rating is warranted for recurrent subluxation or lateral instability of the knee which is moderate. A 30 percent rating is available for recurrent subluxation or lateral instability of the knee which is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The provisions of 38 C.F.R. §§ 4.40 and 4.45 regarding the effects of functional loss due to pain do not apply to Diagnostic Code 5257, as that diagnostic code is not based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). VA's General Counsel has held that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. If a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). However, if a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Diagnostic Code 5257) a separate 10 percent rating may be assigned where there is X-ray evidence of arthritis and evidence of painful motion. See VAOPGCPREC 9-98 (August 14, 1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 3.59. The combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Diagnostic Code 5010 indicates that arthritis due to trauma, substantiated by X-ray findings should be rated as arthritis, degenerative. Diagnostic Code 5003, specifies 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 Codes 5003, 5010 (2012). If 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. Id. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of rating disability from arthritis, VA regulations consider major joints to be the shoulder, elbow, wrist, hip, knee and ankle. 38 C.F.R. § 4.45(f). Diagnostic Code 5260 provides a noncompensable rating when leg flexion is limited to 60 degrees. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent rating is warranted for leg flexion limited to 30 degrees. A 30 percent rating is warranted for leg flexion limited to 15 degrees. Diagnostic Code 5261 provides a noncompensable rating when extension is limited to 5 degrees. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is warranted for leg extension limited to 20 degrees. A 40 percent evaluation is warranted for leg extension limited to 30 degrees. A 50 percent evaluation is warranted for leg extension limited to 45 degrees. A claimant who has compensable limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9 - 2004 (Sept. 17, 2004). As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. In order for the Veteran to receive a higher, 20 percent rating under Diagnostic Code 5257 for the time period prior to April 9, 2012, his left knee lateral instability would have to be characterized as moderate. The medical evidence for this time period reflects that in February 2007, there was mild anterior cruciate ligament laxity at the left knee, but the ligament was intact. Anterior drawer sign allowed movement of 2 mm on the left, and McMurray and Lachman tests were negative. In April 2010, although McMurray's test was positive, there was no varus/valgus or anterior/posterior instability. In January 2011, McMurray and Lachman tests were negative, and the examiner determined that there was no lateral instability or subluxation. The examiner further stated that the left knee has continued pain and instability, which is diagnosed as continued derangement of the medial meniscus, also diagnosed as mild continuing patellar chondromalacia. Based upon the evidence of mild anterior cruciate ligament laxity found in February 2007, the lack of any varus/valgus or anterior/posterior instability found in April 2010, the lack of any description of the severity of the positive McMurray test in April 2010, the lack of any finding of lateral instability or subluxation in January 2011, and the diagnosis of mild continuing patellar chondromalacia in January 2011, the Board finds that the instability of the Veteran's left knee prior to April 9, 2012 is no more than slight. As such, a higher, 20 percent rating under Diagnostic Code 5257 is not warranted for this time period. In order to receive a higher, 30 percent rating under Diagnostic Code 5257 for the time period beginning on April 9, 2012, the Veteran's left knee instability would have to be characterized as severe. The medical evidence does not reflect that this is the case. Notably, in April 2012, the VA examiner specifically indicated that the Veteran's left knee instability due to his patellofemoral chondromalacia is moderate. Based upon this evidence, the Veteran's left knee patellar chondromalacia is not manifested by severe instability. Therefore, a rating in excess of 20 percent under Diagnostic Code 5257 is not warranted for the time period beginning on April 9, 2012. With regard to entitlement to a separate compensable rating for patellar chondromalacia of the left knee based on limitation of motion of the left knee joint at any time during the appeal period, the Board notes that there was objective evidence of painful motion of the left knee throughout the appeal period. However, the February 2007 and April 2012 VA examiners specifically noted that the Veteran does not have a diagnosis of arthritis, and the January 2011 VA examiner noted that X-rays of the knees in 2010 were normal. Although the May 2010 VA addendum, which reports the results of the Veteran's left knee MRI scan, indicates that the Veteran has mild arthritis of his left knee and various VA treatment records indicate that he has degenerative joint disease, the two above listed VA examiners specifically noted that the Veteran does not have arthritis. Moreover, the May 2010 MRI scan report does not actually indicate arthritis. Instead, it indicates a small tear in the posterior horn of the medial meniscus and a lateral patellofemoral articular chondrolysis. As such, a separate rating based upon arthritis with evidence of painful motion is not warranted. Moreover, in February 2007, range of motion of the left knee was shown to be limited to no worse than from zero degrees extension to 65 degrees flexion, based upon the Veteran's subjective symptoms and taking into account flare-ups. Even with consideration of additional functional impairment due to pain, including on repeated use, functional impairment comparable to compensable limitation of flexion or extension was not demonstrated. Range of motion of the left knee in January 2011 was from zero degrees extension to 132 degrees flexion and in April 2012 range of motion was from zero degrees extension to 120 degrees flexion taking into consideration repetitive motion and pain, weakness, fatigue, lack of endurance and incoordination. While acknowledging that the left knee range of motion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Significantly, the April 2012 examiner did not note additional loss of function with repetitive use. There was pain on use and less movement than normal, but no weakened movement, excess fatigability, incoordination, swelling, atrophy of disuse, disturbance of locomotion, or interference with sitting, standing, and weight bearing. As the Court noted in Mitchell v. Shinseki, Id., a Veteran is not entitled to the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because he or she exhibits pain throughout range of motion. As such, a separate compensable rating is not warranted at any time during the rating period on appeal as there is no evidence of arthritis and functional impairment comparable to compensable limitation of flexion or extension was not demonstrated. The Board has also considered the potential applicability of other rating codes for the Veteran's left knee patellar chondromalacia. However, a higher rating is not warranted under any of the other diagnostic codes related to knee disabilities at any time during the appeal period. In this regard, the Board observes that there is no evidence the Veteran suffers from ankylosis. Notably, the medical evidence consistently reflects that the Veteran retains useful range of motion of his left knee. Moreover, ankylosis has not been diagnosed. Therefore, Diagnostic Code 5256 is not for application. Diagnostic Codes 5258 and 5259 pertain to dislocated and removal of semilunar cartilage; however, Diagnostic Code 5259 does not provide for a rating in excess of 10 percent and Diagnostic Code 5258 does not provide for a rating in excess of 20 percent. Diagnostic Code 5258 provides for a 20 percent rating for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. The Board has determined that a higher, 20 percent rating under Diagnostic Code 5258 for the time period prior to April 9, 2012 is not warranted. In this regard, although there is evidence of dislocated semilunar cartilage, and there is evidence of frequent episodes of pain, there is no evidence of frequent episodes of locking or effusion into the joint. Notably, at the February 2007 VA examination, the Veteran reported experiencing instability and collapsing, but no locking. He stated that the surgery in 2004 eliminated the locking problem. In contrast, the Veteran complained of "some locking." at the January 2011 VA examination. Regarding effusions, in February 2010 there was no evidence of edema, in April 2010 there was no evidence of any effusion, and in January 2011, the VA examiner stated that there was no increase in joint fluid at the left knee. Moreover, in general, the VA treatment records prior to April 9, 2012 do not reflect complaints of locking or effusions into the joint. However, the April 2012 VA examiner indicated that May 2010 MRI report reflects that there was a small effusion. Based upon this evidence showing only some complaints of locking or effusion, there are not frequent episodes of locking or effusion into the joint. Consequently, a higher 20 percent rating under Diagnostic Code 5258 is not warranted for the time period prior to April 9, 2012. The evidence also does not reflect that the Veteran has malunion of the tibia or fibula. Therefore, a higher rating under Diagnostic Code 5262 is not for application at any point during the appeal period. Furthermore, Diagnostic Code 5263, which rates genu recurvatum, is not applicable because the Veteran is not diagnosed with genu recurvatum. In any event, the only available rating under Diagnostic Code 5263 is a 10 percent rating. Therefore, a higher rating is not available under that code. In view of the foregoing, the Board finds that the preponderance of the evidence of record is against an evaluation in excess of 10 percent prior to April 9, 2012 or to an evaluation in excess of 20 percent from April 9, 2012, for the Veteran's service-connected left knee patellar chondromalacia. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular criteria are inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to his service-connected left knee patellar chondromalacia. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's left knee patellar chondromalacia is not productive of such manifestations. Therefore, a further analysis under Thun is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an increased rating for patellar chondromalacia of the left knee, rated 10 percent prior to April 9, 2012, and 20 percent from April 9, 2012, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs