Citation Nr: 1315817 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 06-09 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a compensable rating for left knee chondromalacia patella, to include entitlement to a separate rating for arthritis of the left knee prior to September 23, 2010, and to a rating in excess of 10 percent from September 23, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to August 1986. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified regarding the issue on appeal at a Central Office hearing before the Board conducted by the undersigned Veterans Law Judge in April 2007. Subsequently, the Board remanded the appeal for a compensable rating for chondromalacia, left knee, in June 2007 and September 2009. In March 2012, the Board granted a separate, compensable rating for left knee arthritis, from September 23, 2010, and denied a compensable evaluation for chondromalacia patella, left knee. The Veteran appealed that March 2012 decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued an Order effectuating a September 2012 Joint Motion to Remand, which vacated the Board's 2012 decision as to the claims addressed on the title page of this decision; and remanded the appeal to the Board for re-adjudication, characterized as listed on the title page of this decision. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was remanded for the preparation of a Statement of the Case, in the Board's September 2009 Remand. However, the Veteran has not filed a substantive appeal (VA Form 9), regarding this issue in connection after VA issued a September 2010 Statement of the Case (SOC). See 38 C.F.R. § 20.200 (2012) (noting claimant needs to file a timely VA Form 9 after a SOC has been furnished in order to perfect an appeal). The Veteran was advised, by the Board's September 2009 Remand and by the RO's September 2010 correspondence, that the Veteran needed to file a VA Form 9 after the issuance of a SOC in order to complete his appeal of that issue. Since no substantive appeal to the Board has been received, the issue of TDIU is not now within the Board's jurisdiction and is not addressed in this decision. The Board notes that the Veteran was represented by an attorney in his appeal before the Court. However, the claims file before the Board at this time reflects that the Veteran is represented by the organization listed on the title page of this decision. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran's left knee chondromalacia patella disability was not manifested by objective subluxation or instability during examinations, although the Veteran reported occasional episodes of "going out" or "giving way" of the left knee, for which he used a left knee brace; and objective evidence of crepitus, swelling, and varus position with weightbearing was noted. 2. The Veteran's left knee disability was also characterized by a diagnosis of arthritis from February 22, 2006; and manifested by visible evidence of left knee deformity, noncompensable limitation of motion, and painful motion, but not by flexion limited to 45 degrees or less, extension limited to 10 degrees, or by ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation, but no higher evaluation, for left knee chondromalacia patella have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a separate 10 percent evaluation, but no higher evaluation, for mild degenerative arthritis of the left knee joint, have been met for the period from February 22, 2006. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.400(o), 4.1-4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties to the claimant must be examined. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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, 3.326(a) (2012). Duty to Notify Under the VCAA, VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the duty to notify the Veteran was met by an initial notice sent in March 2005. After the initial rating was issued in October 2005, a notice compliant with Dingess was issued in May 2006, after Dingess was issued in 2006. The claim remaining on appeal was thereafter readjudicated. The Veteran was notified of the evidence required to substantiate the claim and additional development necessary by the content of the Board Remands issued in 2007 and 2009 and by communications issued following those decisions. Additionally, the claim for an increased evaluation for chondromalacia, left knee, was readjudicated after each Remand. The Veteran testified at a hearing before the undersigned in April 2007. At that time, the Veteran addressed the symptoms which he felt indicated an increased severity of his left knee disability. Transcript (Tr.), April 2007 hearing, pp. 3-6. The Veteran's discussion of the evidence at the hearing before the Board demonstrates that the Veteran understood what evidence was necessary to substantiate his claim for an increased rating for the left knee. 38 C.F.R. § 3.103 (2012); Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). In any event, as noted above, additional notice was issued following the Board's 2007 and 2009 Remands. If any notice deficiency remained following the Veteran's hearing, that deficiency was addressed in the post-hearing communications to the Veteran. Finally, the Veteran has been represented throughout the appeal, and was represented by an attorney during his appeal to the Court. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Duty to Assist The duty to assist also has been fulfilled as VA medical records relevant to this matter have been obtained and VA examinations have been provided. Social Security Administration (SSA) records have been obtained. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. The Board has reviewed the entire electronic (Virtual VA) record as well as the entire claims file and associated folders. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14. When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. In evaluating the Veteran's higher rating claim for the left knee, the Board also must consider a claimant's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Left Knee The Veteran seeks an increased rating for his service-connected left knee disability. Service connection for left knee chondromalacia patella was granted in a May 1987 rating decision and a noncompensable or zero percent rating was granted, effective August 23, 1986, or the day after the Veteran's discharge from active duty. The Veteran's current request for a higher rating was received at VA in October 2004. The Veteran contends the current rating does not accurately reflect the severity of his left knee disability. The Veteran's left knee chondromalacia patella has been rated under Diagnostic Code 5257. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, a knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and a maximum 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has considered each of the diagnostic codes applicable to rating knee disability. Diagnostic Code 5010 concerns evaluation as degenerative arthritis. Degenerative arthritis established by X-ray findings is evaluated under Diagnostic Code 5003, which in turn is evaluated based on the limitation of motion under the appropriate diagnostic code for the specific joint involved, or in this case, Diagnostic Code 5260 for limitation of leg flexion and Diagnostic Code 5261 for limitation of leg extension. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Code 5003. The knees are considered major joints. 38 C.F.R. § 4.45. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees and a 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is warranted when extension is limited to 10 degrees, a 20 percent rating is warranted when extension is limited to 15 degrees and a 30 percent rating is warranted when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board also must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). Under VAOPGCPREC 23-97, a Veteran with arthritis of the knee may be assigned separate ratings for therefor with limitation of motion under Diagnostic Code 5260 or 5261, and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). VA standards describe normal range of extension and flexion as from 0 degrees (full extension) to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Facts A VA X-ray study of the bilateral knees in April 2005 showed a normal left knee. There was no fracture, dislocation or bone destruction after a motor vehicle accident and no soft tissue abnormality was noted. This treatment record establishes that arthritis of the left knee was not present in April 2005. The Veteran underwent a VA examination in June 2005. The Veteran complained of recurring bilateral knee pain that was not debilitating and did not interfere with his daily activities. He did not use knee braces, but took Etodolac for pain. He did not claim weakness, fatigability, decreased endurance, incoordination or flare-ups. On objective examination, there was no tenderness to palpation, swelling, deformities or instability of the left knee. Range of motion of the left knee was measured as follows: flexion to 120 degrees active and to 140 degrees passive with extension to 0 degrees. The Veteran's gait was described as normal. The VA examiner noted that no definite diagnosis for the left knee was established although the Veteran reported recurring knee pain for both knees. In 2005, the Veteran sought disability benefits for blindness in the left eye and arthritis in the arms and knees from the Social Security Administration (SSA). The Veteran's SSA medical file has been associated with his claims file as a CD-ROM. These records have been reviewed by the Board. The Veteran's claim for SSA disability benefits and Supplemental Security Income (SSI) was denied in 2005; he subsequently sought formal reconsideration of that denial. In an initial 2005 SSA orthopedic examination, it was noted that the Veteran complained of pain in both knees. Range of motion for the knees was measured as follows: full extension and flexion up to 135 degrees. Examination showed no effusion and the knees were stable to valgus and varus as well as anterior and posterior drawer testing. Impression was chondromalacia patellae of both knees with no mention of arthritis. The SSA examiner also detected no impairment of the Veteran's ability to ambulate long distances. In October 2005, the Veteran requested orthopedic shoes and knee braces for foot and knee pain from VA. After VA podiatric and orthopedic evaluation, the Veteran was approved for orthotics and a left knee brace. In November 2005, the Veteran requested and was issued a smaller size in the left knee brace. In February 2006, Lidocaine patches were issued for the Veteran's joint and foot pain. At the time of a February 22, 2006, SSA examination, it was noted that the Veteran had visible deformity of the left knee. Examination showed range of motion of the left knee measured as full extension with flexion up to 140 degrees. The Veteran's gait was antalgic. He had difficulty with ambulation and difficulty getting up on the examination table. The examiner stated that the Veteran had joint deformities in his knees secondary to arthritis. In written submissions and during the Board hearing in April 2007, the Veteran asserted that he had to wear braces on both knees. During his Board hearing in April 2007, the Veteran testified that at times his left knee swelled up and, if he walked for a long time, a bone would pop out the side of the knee. On such occasions he had to "pull" his knee back. He said he had pain and arthritis in the knee and had no cartilage. He also said that he had been wearing a left knee brace for the previous year because his knee gave away all the time. (See Tr. pp. 3, 10.) In a handwritten letter from the Veteran's spouse received in June 2007, she said that the Veteran could not stand or sit too long before his left knee began swelling. She also asserted there was a bone that popped out on the inside of the knee and that her husband wore a knee brace. The Veteran underwent a VA orthopedic examination in October 2008. He complained of instability, the knee giving way, pain, stiffness, weakness, and incoordination. The Veteran told the examiner he felt that his left knee was unstable. He could not sit in a vehicle more than 30 minutes before the knee became painful. He also claimed stiffness in the left knee after sitting for 30 minutes. He stated that his left knee buckled once or twice a month when walking. The Veteran also reported that the left knee popped out of its socket and pointed to the mid-medial aspect of the left knee. He told the examiner that was why he was given wrap-around knee support with Velcro straps. He pointed to the mid-medial aspect of the left knee near the medial joint line and said it last popped out two weeks before when he was climbing a ladder a ladder at work. The Veteran reported that he was climbing a ladder because he was attempting to return to employment after being unemployed since 2001 while taking care of his mother. The Veteran reported that he had held the job for about 3 weeks. The Veteran estimated the bone popped out about one to one and one-half inches and was tender for another two to three hours. He complained of flare-ups twice a month when sitting for a long time or walking and stated that sometimes "fluid" popped out of the anterior aspect of the left knee. The Veteran also told the examiner that he was told that he had arthritis in his knee. He used a left knee brace. On examination, the Veteran flexed the left knee up to 100 degrees when he took the knee brace off, and up to about 120 degrees when he took his shoes off. When he walked across the examination room he favored the left knee and leg, but did not have any pain. He told the examiner this was from favoring it for so long. When standing and holding onto the edge of the examination table, the Veteran flexed his knee about 120 degrees three times without difficulty and with no pain. However, the examiner noted considerable crepitus, which seemed to involve the patella-femoral joint area, and a grinding sensation on range of motion exercises. Full extension of the left knee also was noted. Examination also showed mild enlargement of the medial femoral condyle of the left knee when compared with the right. The examiner also noted no significant cruciate and collateral ligament laxity checked at 30 and 90 degrees of flexion with full extension. McMurry test was negative. There were no popiteal lumps or masses and both knees and legs were fairly straight with no significant varus or valgus angulation. Another range of motion evaluation of the left knee measured full extension, and 135 degrees of active flexion and about 140 degrees of passive flexion. There was also about 135 degrees of flexion after three repetitious movements. The examiner noted no instability, no significant ligament laxity, and no significant joint effusion. The VA examiner reported no objective evidence of pain with repeated motion. Diagnosis was chondromalacia patella of the left knee. The VA examiner was not able to determine any objective evidence of pain on motion, weakness, excess fatigability or any incoordination associated with the left knee. The examiner opined that it would be speculation to estimate how much functional loss of motion would occur during flare-ups other than what he observed during this examination. The examiner assigned a diagnosis of chondromalacia of the left patella. MRI (magnetic resonance imaging) scan of the left knee conducted in November 2008, ordered as part of the October 2008 VA examination, showed degenerative changes involving the medial femorotibial joint with slight thinning of the articular cartilage, a narrowing of the joint space, and slight peripheral extrusion of the meniscus. There were also mild degenerative changes involving the lateral compartment and patellofemoral joint with small marginal osteophytes. There was no meniscal tear or other significant abnormality. The Veteran underwent a VA examination in September 2010. The Veteran complained of the same symptoms and flare-ups noted in the October 2008 examination. He also said that the medial side of the left knee joint jumped out when walking and the outer aspect of the left knee would swell. He said that it took a few minutes of slapping the sides of the knee before it functioned. He denied the ability to jog without the knee swelling and said that the knee swelled up if he sat in the car for very long. He used a left knee brace. On examination, it was noted that the Veteran walked with some stiffness of the left knee and wore a left knee brace. While sitting he flexed the left knee about 100 degrees to take his shoes off. He was able to squat acutely three times when he flexed his knees about 120 degrees without apparent difficulty. Another range of motion exercise showed there was full active and passive extension of the left knee and flexion to 130 degrees. There was no further loss of flexion after three repetitious movements. The examiner also noted that there was no further loss of range of motion of the left knee secondary to pain from repetitious movements, any loss of endurance, any increase of fatigue, any weakened movement or any incoordination. He also opined that it would be speculation to state how much additional loss of motion would occur during flare-ups such as from pain, lack of endurance, any increase of fatigue, any incoordination and any weakened movements other than what he observed during the examination. The McMurray test and Patrick test for knee stability were negative. Very mild swelling of the left knee also was noted and the examiner stated that the left knee tended to go into valgus position when the Veteran stood with weight bearing. The Veteran told the examiner that he limped around the room from long habit and not due to pain. There was a light area on the Veteran's left patella which the Veteran stated was where he struck the left knee on the floor about a month earlier when he attempted to go to the bathroom without his brace and the left knee gave way. The VA examiner noted mild patella-femoral compression pain in the left knee but not much crepitus. There was no patella-femoral instability and the cruciate and collateral ligaments were intact. There was mild swelling. Diagnosis was mild degenerative arthritis of the left knee joint with mild chondromalacia of the patella. In October 2010, the examiner who conducted the September 2010 VA examination issued an addendum after reviewing the claims file (which had not been available the previous month). The VA examiner stated that his diagnosis and opinions remained unchanged from the previous month. He noted that he had ordered new X-rays of the Veteran's knees and feet at the time of the VA examination. The Veteran did not report for the scheduled radiologic examination. Analysis The Board finds that a compensable, 10 percent, disability rating under Diagnostic Code 5257 for left knee chondromalacia patella is warranted. Although the Veteran has not demonstrated giving way of the knee during objective examination, there are objective findings of crepitus. The Veteran has reported instability of the left knee since 2005, when he requested a knee brace. He has reported subluxation or giving way of the left knee on VA examinations since 2005, the last either years of the pendency of the claim. Additionally, there is objective evidence of valgus position on weight bearing and of mild swelling. Given the objective evidence of crepitus, the physical findings of swelling, and the Veteran's consistent reports for nearly eight years, both for treatment purposes and examination purposes, of instability or popping out of the knee, the Board finds that, after affording all reasonable doubt in favor of the Veteran, a 10 percent evaluation for mild chondromalacia is warranted under Diagnostic Code 5257. However, the objective tests of stability during VA examinations in June 2005, October 2008, and September 2010 are inconsistent with a finding that there is frequent instability or subluxation or that instability is more than mild in degree. The Veteran has not required medical treatment for a fall, although he has reported very minor injury due to the left knee giving away. The medical evidence does not demonstrate any objective evidence of subluxation or instability, such as a positive McMurray's test or Drawer sign, and the VA examiners specifically failed to note any weakness or instability. Reasonable doubt may be resolved in the Veteran's favor to warrant a 10 percent evaluation, given the Veteran's reports of instability or subluxation. However, in view of the lack of objective findings, the facts do not support an evaluation in excess of 10 percent for left knee chondromalacia. The Board next will consider whether a separate rating may be assigned for any manifestation of left knee disability other than instability. In the three VA examinations and the two SSA examinations undertaken during this period, there is no evidence of flexion limited to 45 degrees to warrant a higher or 10 percent rating. In fact, for this time period, medical records reflect flexion usually was to 100 to 140 degrees. Similarly, there is no evidence the Veteran had limitation of extension to 10 degrees to warrant a higher rating. In fact, the evidence for this time period demonstrated the Veteran had full extension to 0 degrees for his left knee. Therefore, compensable ratings for the Veteran's slight limitation of motion of the left knee under Diagnostic Codes 5260 or 5261 are not warranted for the initial period on appeal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board also considered whether separate or increased ratings were warranted under other diagnostic codes pertaining to knee disabilities that would afford the Veteran a higher rating; however, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no evidence of symptomatic removal of semilunar cartilage under Diagnostic Code 5259; no dislocated semilunar cartilage with frequent locking pain and effusion to warrant a rating under Diagnostic Code 5258; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia and fibula; and no evidence of acquired or traumatic genu recurvatum to warrant a rating under Diagnostic Code 5263. Notwithstanding the foregoing, examination findings and the medical evidence noted above showed that the Veteran has been diagnosed with arthritis of the left knee. The Board, therefore, will consider whether a separate rating is warranted for arthritis of the left knee under the provisions of Diagnostic Codes 5003 and 5010. As noted above, a rating under Diagnostic Codes 5003 and 5010 for degenerative arthritis usually requires X-ray evidence of arthritis. In this case, the first X-ray study of the left knee during this appeal period, done in April 2005, shows a normal knee. MRI conducted in 2008 disclosed degenerative changes. The SSA examiner who conducted February 2006 examination stated that there was visible deformity and assigned a diagnosis of arthritis of the left knee. The treatment records and VA examination reports disclose both objective and subjective indications that the Veteran has left knee pain. Resolving reasonable doubt as to the onset of left knee arthritis in the Veteran's favor, the Board finds that service connection for left knee arthritis may be granted from February 22, 2006, the date of the examination underlying the March 2006 report of SSA examination. The Board notes that no diagnosis of arthritis of the left knee had been assigned by a medical provider when the Veteran submitted this claim. Radiologic examination conducted in 2005 disclosed that no arthritis was present. Because visible deformity of the left knee, which the examiner opined was due to arthritis, was described as present at the time of an examination conducted on February 22, 2006, the separate grant of service connection for arthritis of the left knee and evaluation may be awarded from February 22, 2006, but no earlier. 38 U.S.C.A. § 5110 (the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof; 38 C.F.R. § 3.400(o) (if the increase occurred after the date of claim, the effective date is the factually ascertainable date of increase). The Board observes that the 10 percent rating separately assigned herein for arthritis under Diagnostic Codes 5003 and 5010 for the left knee contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance; in fact, Diagnostic Code 5003 mandates that limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or painful motion. Accordingly, application of the DeLuca factors and the provisions of 38 C.F.R. §§ 4.40 and 4.45 in this case do not support the grant of any higher rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is competent to report his symptoms relating to left knee pain. The Board is aware of the Veteran's assertions as to the severity of his left knee pain. However, his contentions do not support a rating in excess of 10 percent for arthritis, as a 10 percent rating is the maximum schedular evaluation where one joint, such a the left knee, in this case, is involved. To the extent that the Veteran has asserted that he warrants a higher rating for his left knee, the Board finds that the preponderance of the evidence for this appeal period supports only a separate rating for arthritis since the February 2006 examination. Reasonable doubt does support granting the Veteran a separate 10 percent rating for arthritis since February 22, 2006. Extraschedular consideration The above determinations are based on application of pertinent provisions of VA's Schedule for Rating Disabilities. The Board must also consider whether referral is warranted in this case for consideration of the assignment of a disability rating on an extraschedular basis during this time frame. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation Service for extraschedular consideration. In this appeal, there has been no showing that the Veteran's disability picture for left knee chondromalacia patella could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings for this issue under a variety of diagnostic codes, and has been explained thoroughly herein, a separate higher rating for evidence of arthritis in the left knee joint is warranted for the period since February 22, 2006. The Board believes the currently assigned ratings adequately describe the severity of the Veteran's symptoms during the applicable this appeal period. The Veteran's assertions have been considered by the Board, in particular his claims of left knee instability and pain. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization or interference with employment. In any event, the Veteran has not required hospitalization for left knee treatment. Although he reported that he sustained a fall from a ladder at work in 2008, he reported that lack of inability to stand and stoop caused him to stop working at "Checkers." The Veteran did not identify any employer who could verify the effect of service-connected left knee disability on employment. However, as the Veteran was granted SSA disability benefits prior to the described employment, there is no evidence that the Veteran was seeking to replace his SSA benefits with substantial gainful employment, and no evidence that wages were reported to SSA after the Veteran was granted SSA disability benefits. Therefore, the evidence does not show that service-connected left knee symptoms interfered with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis for the disability currently under appeal is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Based upon the guidance of the Court in Hart, 21 Vet. App. at 509-10, the Board has considered whether a staged rating is appropriate. However, including the newly-assigned separate rating for arthritis, there appears to be no identifiable period of time, since the Veteran filed for an increased rating, during which his service-connected left knee disability was shown to be in excess of the assigned disability ratings. ORDER A 10 percent evaluation, but no higher evaluation, is granted for left knee chondromalacia patella, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. A separate 10 percent rating for arthritis of the left knee from February 22, 2006, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs