Citation Nr: 1315965 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 04-07 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to the extension of a temporary total disability rating for the right knee beyond January 1, 2005. 2. Entitlement to a rating higher than 10 percent for chondromalacia of the right patella based on limitation of motion. 3. Entitlement to a rating higher than 10 percent for chondromalacia of the left patella before April 1, 2008, and a rating higher than 20 percent from April 1, 2008, based on limitation of motion. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1988 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2003 and in November 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a rating decision in August 2008 the Ro increased the rating for left knee to 20 percent rating, effective March 28, 2008, based on limitation of motion. In a rating decision in August 2008, the RO granted a 20 percent rating for the chondromalacia of the left patella with degenerative changes, effective March 28, 2008. The RO subsequently granted a temporary total convalescent rating for the left knee through March 2008, and assigned a 20 percent rating from April 1, 2008. The Veteran continued his appeal for a rating higher than 20 percent for the left knee. AB v. Brown, 6 Vet. App. 35, 38 (1993). During the appeal period, the Veteran has had several knee surgeries, and the RO has awarded temporary total disability ratings based on convalescence following knee surgeries from August 24, 2004, through December 2004; May 2, 2006, through August 2006; and December 4, 2007, through March 2008. In February 2006 the Veteran withdrew his request for a hearing before the Board. In December 2010 and August 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the remands, the Board referred to the RO the claim for increase for a low back disability, a claim of service connection for depressive disorder, claims for a temporary total rating following left knee surgery in November 2009 and right knee surgery in May 2010, and a new and material evidence claim for service connection for posttraumatic stress disorder. As the RO has not yet had the opportunity to consider the claims, the claims are again referred to the RO. Washington, DC. In rating decision in January 2013, an Agency of Original Jurisdiction assigned separate ratings for left knee instability and for a dislocated semilunar cartilage and for right knee instability and for a dislocated semilunar cartilage, and granted service connection for a left knee surgical scar, and a total disability rating for compensation based on individual unemployability, each effective May 22, 2009. After the Veteran was notified of the rating decision and of his right to appeal the rating decision, the Veteran has not expressed disagreement with the ratings or with the assigned effective dates. The Veteran has the remainder of the one year period from the date of notification of the rating decision to file a notice of disagreement if he chooses. FINDINGS OF FACT 1. Following right knee surgery, the Veteran has awarded temporary total disability ratings based on convalescence from August 24, 2004, to December 31, 2004. 2. Before September 1, 2006, and apart from any period covered by a temporary total rating, the right knee disability was manifested by flexion to 90 degrees and extension to zero degrees; from September 1, 2006, and apart from any period covered by a temporary total rating, the right knee disability is manifested by flexion to 45 degrees and extension to 20 degrees with additional functional loss due to pain, disuse atrophy, and disturbance of locomotion. 3. Before April 1, 2008, and apart from any period covered by a temporary total rating, the left knee disability was manifested by flexion to 130 degrees or 45 degrees and extension to zero degrees, considering functional loss; from April 1, 2008, the left knee disability is manifested by flexion to 45 degrees or 90 degrees; from April 1, 2008, and apart from any period covered by a temporary total rating, the left knee disability is manifested by limitation of extension to 20 degrees with additional functional loss due to pain, disuse atrophy, and disturbance of locomotion. CONCLUSIONS OF LAW 1. A temporary total disability rating for a right knee disability, following surgery in August 2004, has been granted to December 31, 2004, to the extent the Veteran clearing limited the benefit sought. 38 U.S.C.A. § 7105 (West 2002). 2. Before September 1, 2006, and apart from any period covered by a temporary total rating, the criteria for a rating higher than 10 percent for a right knee disability based on limitation of flexion or the criteria for a separate compensable rating based on limitation of extension had not been met; from September 1, 2006, and apart from any period covered by a temporary total rating, the criteria for a rating higher than 10 percent for a right knee disability based on limitation of flexion have not been met; from September 1, 2006, and apart from any period covered by a temporary total rating, the criteria for a separate rating of 30 percent based on limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). 3. Before April 1, 2008, and apart from any period covered by a temporary total rating, the criteria for a rating higher than 10 percent for a left knee disability based on limitation of flexion or the criteria for a separate compensable rating based on limitation of extension had not been met; from April 1, 2008, and apart from any period covered by a temporary total rating, the criteria for a rating higher than 20 percent for a left knee disability based on limitation of flexion have not been met; from April 1, 2008, and apart from any period covered by a temporary total rating, the criteria for a separate rating of 30 percent based on limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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, 484-86 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice letters, dated in February 2003, September 2003, December 2005, October 2006, May 2008 and April 2012. The Veteran was notified of the type of evidence needed to substantiate a claim for increase, namely, evidence to show that the disability was worse and the effect the disability had on employment. The Veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent there was pre-adjudication notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in December 2012. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist VA has made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A. The RO has obtained service records, VA records, private medical records, and Social Security Administration (SSA) records. The Veteran was afforded VA examinations. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Temporary Total Disability Rating In a rating decision in November 2004, the RO granted a temporary total disability rating following right knee surgery from August 24, 2004, to November 1, 2004. While on appeal, in a rating decision in April 2005, the RO extended the period of the temporary total rating to December 1, 2004. In a rating decision in January 2006, the RO extended the temporary total disability rating to December 31, 2004. In his substantive appeal, the Veteran expressly limited the claim for a temporary total rating to cover the period until he returned to work on December 13, 2004. As the benefit sought has been granted, the Board does not have authority to review the claim. AB v. Brown, 6 Vet. App. 35, 39 (1993). Evidence Rating the Knees Evidence In May 2002 on VA examination, flexion was to 130 degrees and extension was to zero degrees for each knee. There was no laxity. In August 2003 on VA examination, flexion was to 130 degrees and extension was to zero degrees for each knee. There was no laxity. The Veteran did complain swelling, giving way, locking and pain, as well as an increase in symptomatology with prolonged standing, but the VA examiner found no objective findings on physical examination and a MRI of the right knee was normal. In August 2004, private medical records show that the Veteran underwent a right knee anteromedial meniscectomy and chondroplasty. On VA examination in February 2005, left knee flexion was to 140 degrees and extension was to zero degrees. There was no ligament laxity. For the right knee, flexion was to 100 degrees. In January 2006 on VA examination, the Veteran reported no improvement in his knee symptomatology. For the right knee, the Veteran limped to the right on ambulation. There was difficult knee movement against gravity and generalized tenderness. Flexion was limited to 90 degree and extension was to zero degrees with no additional function impairment with repetitive testing. The VA examiner reported d that there was no evidence of loss of range of motion of the left knee. In May 2006, the Veteran had arthroscopic surgery for severe adhesions and a retinacular release of the right knee. In September 2006 on VA examination of the right knee, the Veteran continued to report right knee pain and swelling. The VA examiner indicated that there was no increased functional impairment due to flare-ups because right knee pain was constant pain and aggravated by walking and repetitive motion. Although there was evidence of some right knee weakness and loss of strength, there was no evident fatigueability. The Veteran walked with a limp and presented with effusion and tenderness. Flexion was to 70 degrees and extension limited to 20 degrees with no change with repetitive testing. In July 2007, B. Weldon, D.O., reported the Veteran's account of bilateral knee symptoms, including pain and "rigidity." Dr. Weldon stated that the Veteran had not recuperated fully. In December 2007, the Veteran had left knee surgery. In March 2008 on VA examination, the Veteran complained of bilateral knee pain with motion. The Veteran walked with limp. Right flexion was limited to 45 degrees and extension was limited to 10 degrees. Left knee flexion was limited to 45 degrees and extension was limited to 15 degrees. Bilateral repetitive testing resulted in no additional loss of function. Degenerative changes to the right knee were shown by MRI. In June 2008, right knee flexion was to 100 degrees and extension was full. Left knee flexion was to 90 degrees and extension was limited to 20 degrees. In October 2009, Dr. Wildermann reported the Veteran's history of bilateral knee surgical interventions. On examination, there was no left knee warmth, swelling, or ligamentous instability. Progressive left kneecap degeneration was noted. In November 2009, the Veteran had a left knee chondroplasty and adhesiolysis. In April 2010, the Veteran continued to experience left knee symptoms, but he returned to work in March 2010. In May 2010, the Veteran had a right knee arthroscopic adhesiolysis. In January 2011 on VA examination, the Veteran reported pain, swelling, locking and popping bilaterally. He was using braces on each knee to aid in stability when walking and standing. The Veteran presented with a Trendelenburg gait. On right knee evaluation there was pain and tenderness, a positive patella grind test, but no varus or valgus stress instability. Flexion was to 90 degree and extension was limited to 20 degrees. On left knee evaluation, there was some effusion, tenderness over the patella, a positive grind test, and joint tenderness, but no varus or valgus stress instability. Left knee flexion was to 90 degrees and extension was to 15 degrees with no additional loss with repetitive testing or functional loss. In September 2012 on VA examination, the Veteran's symptoms had not materially changed since the previous VA examination. Bilaterally, flexion was to 90 degrees and extension was to zero degrees with repetitive testing there was no additional functional impairment. Pain, atrophy of disuse, and disturbance of locomotion were noted as contributing to the Veteran's functional impairment. Frequent episodes of joint locking, pain and effusion were noted. Imaging studies showed bilateral knee degenerative arthritis. General Rating Policy 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 contained 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for a Knee Disability Rating factors for a disability of the musculoskeletal system include functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. 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 Diagnostic Code 5260 (limitation of flexion), the criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension to 5 degrees is noncompensable. Extension to 10 degrees is rated 10 percent. Extension to 15 degrees is rated 20 percent. Extension to 20 degrees is rated 30 percent rating. Extension to 30 degrees is rated 40. Extension to 45 degrees is rated 50 percent. Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for limitation of flexion and for extension. VAOPGCPREC 9-04 (September 17, 2004). A separate rating may also be assigned for subluxation or instability of the knee under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997). Analysis The Veteran's statements about his right and left knee symptomatology are competent and credible evidence and are consistent with disability picture by history and clinical findings by both VA and private medical professions. Right Knee Disability The right knee disability currently has separate ratings of 10 percent under Diagnostic Code 5260 for limitation of flexion, 10 percent for instability under Diagnostic Code 5257, and 20 percent for a dislocated semilunar cartilage under Diagnostic Code 5258. The combined rating is 40 percent without the bilateral factor. As previously explained, the Veteran has not expressed disagreement with either the separate ratings for instability under Diagnostic Code 5257 and for a dislocated semilunar cartilage under Diagnostic Code 5258 or with the assigned effective dates in May 2009. And the ratings under Diagnostic Codes 5257 and 5258 are not on appeal. The only other applicable Diagnostic Code for which there is not a separate rating is Diagnostic Code 5261 for limitation of extension. Before September 2006 Right knee range of motion, including due to function impairment, is most accurately characterized as flexion limited at worse to 90 degrees and extension was full, considering functional loss. Limitation of flexion to 90 degrees with pain does not more nearly approximate or equate to flexion limited to 30 degrees, the criterion for a 20 percent rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Extension to zero degrees does not more nearly approximate or equate to extension limited to 10 degrees, the criterion for a separate compensable rating for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. The 10 percent rating under Diagnostic Code 5260 is the minimum compensable rating for the knee. Burton v. Shinseki, 25 Vet. App. 1 (2010). For these reasons, the preponderance of the evidence is against a rating higher than 10 percent under Diagnostic Code 5260 and a separate compensable rating under Diagnostic Code before September 1, 2006. From September 2006 After arthroscopic surgery in May 2006 for severe adhesions and a retinacular release of the right knee, the Veteran continued to have right knee pain and swelling. The Veteran walked with a limp and presented with effusion and tenderness. Flexion was to 70 degrees and extension was limited to 20 degrees with no change with repetitive testing. In March 2008 on VA examination, right flexion was limited to 45 degrees and extension was limited to 10 degrees. Repetitive testing resulted in no additional loss of function. In June 2008, right knee flexion was to 100 degrees and extension was full. In May 2010, the Veteran had a right knee arthroscopic adhesiolysis. In January 2011 on VA examination, the Veteran complained of pain, swelling, locking and popping. The Veteran presented with a Trendelenburg gait. Flexion was to 90 degree and extension was limited to 20 degrees. In September 2012 on VA examination, the Veteran's symptoms had not materially changed since the previous VA examination. Flexion was to 90 degrees and extension was to zero degrees with repetitive testing there was no additional functional impairment. Pain, atrophy of disuse, and disturbance of locomotion were noted as contributing to the Veteran's functional impairment. Frequent episodes of joint locking, pain and effusion were noted. Limitation of flexion to 70 degrees or to 45 degrees or to 90 degrees with functional does not more nearly approximate or equate to flexion limited to 30 degrees, the criterion for a 20 percent rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Limitation of extension to 20 degrees or zero degrees raises a question as to which of the two ratings should be applied. 38 C.F.R. § 4.7. Extension limited to 20 degrees is rated 30 percent under Diagnostic Code 5261. Extension limited to zero degrees is rated noncompensable under Diagnostic Code 5261. However the Veteran has had three right knee surgeries and he still has pain and there is evidence of atrophy of disuse, and disturbance of locomotion contributing to the Veteran's functional impairment. With additional functional loss, the disability picture more nearly approximates the criteria required for a compensable rating as opposed to a noncompensable rating. And as extension is limited to 20 degrees, which is ratable at 30 percent under Diagnostic Code 5261, the higher rating is assigned under 38 C.F.R. § 4.7 since the right knee surgery in May 2005 and at the termination of the temporary total rating, September 1, 2006. In the absence of evidence of extension limited to 30 degrees at any time during the appeal, the criteria for a rating higher than 30 percent under Diagnostic Code 5261 have not been met. Left Knee Disability The left knee disability currently has separate ratings of 10 percent under Diagnostic Code 5260 for limitation of flexion before April 1, 2008, and a 20 percent rating from April 1, 2008; a 10 percent for instability under Diagnostic Code 5257, and a 20 percent for a dislocated semilunar cartilage under Diagnostic Code 5258. The combined rating is 40 percent without the bilateral factor. As previously explained, the Veteran has not expressed disagreement with either the separate ratings for instability under Diagnostic Code 5257 and for a dislocated semilunar cartilage under Diagnostic Code 5258 or with the assigned effective dates in May 2009. And the ratings under Diagnostic Codes 5257 and 5258 are not on appeal. The only other applicable Diagnostic Code for which there is not a separate rating is Diagnostic Code 5261 for limitation of extension. Before April 2008 Left knee range of motion, including due to function impairment, was manifested by flexion to 130 degrees and 45 degrees and full extension, considering functional loss. Limitation of flexion to 130 degrees or 45 degrees with pain does not more nearly approximate or equate to flexion limited to 30 degrees, the criterion for a 20 percent rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Extension to zero degrees does not more nearly approximate or equate to extension limited to 10 degrees, the criterion for a separate compensable rating for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. The 10 percent rating under Diagnostic Code 5260 was the minimum compensable rating for the knee. Burton v. Shinseki, 25 Vet. App. 1 (2010). For these reasons, the preponderance of the evidence is against a rating higher than 10 percent under Diagnostic Code 5260 and a separate compensable rating under Diagnostic Code 5261 before April 1, 2008. From April 2008 In December 2007, the Veteran had left knee surgery. In March 2008 on VA examination, left knee flexion was limited to 45 degrees and extension was limited to 15 degrees. In June 2008, left knee flexion was to 90 degrees and extension was limited to 20 degrees. In November 2009, the Veteran had a left knee chondroplasty and adhesiolysis. In January 2011 on VA examination, the Veteran reported pain, swelling, locking and popping bilaterally. He was using braces on each knee to aid in stability when walking and standing. The Veteran presented with a Trendelenburg gait. On left knee evaluation, there was some effusion, tenderness over the patella, a positive grind test, and joint tenderness. Left knee flexion was to 90 degrees and extension was to 15 degrees with no additional loss with repetitive testing or functional loss. In September 2012 on VA examination, the Veteran's symptoms had not materially changed since the previous VA examination. Flexion was to 90 degrees and extension was to zero degrees with repetitive testing there was no additional functional impairment. Pain, atrophy of disuse, and disturbance of locomotion were noted as contributing to the Veteran's functional impairment. Frequent episodes of joint locking, pain and effusion were noted. Limitation of flexion to 45 degrees or 90 degrees with pain does not more nearly approximate or equate to flexion limited to 15 degrees, the criterion for a 30 percent rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Limitation of extension to 15 degrees, 20 degrees, or zero degrees raises a question as to which of two ratings should be applied. 38 C.F.R. § 4.7. Extension limited to 15 degrees is rated 20 percent under Diagnostic Code 5261. Extension limited to 20 degrees is rated 30 percent under Diagnostic Code 5261. Extension limited to zero degrees is rated noncompensable under Diagnostic Code 5261. However the Veteran has had two left knee surgeries and he still has pain and there is evidence of atrophy of disuse, and disturbance of locomotion contributing to the Veteran's functional impairment. With additional functional loss, the disability picture more nearly approximates the criteria required for a compensable rating as opposed to a noncompensable rating. And as extension is limited to either 15 or 20 degrees, which is ratable either as 20 percent or 30 percent under Diagnostic Code 5261, the higher rating is assigned under 38 C.F.R. § 4.7 since the left knee surgery in December 2007 and at the termination of the temporary total rating, April 1, 2008. In the absence of evidence of extension limited to 30 degrees at any time during the appeal, the criteria for a rating higher than 30 percent under Diagnostic Code 5261 have not been met. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the current disability levels and symptomatology to the Rating Schedule, the degree of disability, limitation of flexion and extension is encompassed by the Rating Schedule and the assigned schedule ratings are adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability During the appeal period, in a rating decision in January 2013, an Agency of Original Jurisdiction granted a total disability rating for compensation based on individual unemployability, effective May 22, 2009. After the Veteran was notified of the rating decision and of his right to appeal the rating decision, the Veteran has not expressed disagreement with the rating or with the assigned effective date. (The Order follows on the next page.). ORDER The claim for extension of a temporary total disability rating beyond January 1, 2005, for a right knee disability is dismissed. Before September 1, 2006, and apart from any period covered by a temporary total rating, a rating higher than 10 percent for a right knee disability based on either limitation of flexion or extension is denied; from September 1, 2006, and apart from any period covered by a temporary total rating, a rating higher than 10 percent for a right knee disability based on limitation of flexion is denied. From September 1, 2006, and apart from any period covered by a temporary total rating, a separate rating of 30 percent for a right knee disability based on limitation of extension is granted. Before April 1, 2008, and apart from any period covered by a temporary total rating, a rating higher than 10 percent for a right knee disability based on either limitation of flexion or extension is denied; from April 1, 2008, and apart from any period covered by a temporary total rating, a rating higher than 20 percent for left knee disability based on limitation of flexion is denied. From April 1, 2008, and apart from any period covered by a temporary total rating, a separate rating of 30 percent for a left knee disability based on limitation of extension is granted. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs