Citation Nr: 1316163 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 11-08 771 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased evaluation (rating) in excess of 20 percent for right knee arthritis. 2. Entitlement to an increased evaluation (rating) in excess of 10 percent for right knee instability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (appellant) and his wife ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from July 1985 to November 1996. This case returns to the Board of Veterans' Appeals (Board) from the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court endorsed a December 2012 joint motion for partial remand, vacated the portion of the February 2012 Board decision that denied a separate compensable rating under Diagnostic Code 5259 for the right knee disability, and remanded the matter for compliance with the instructions in the joint motion. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran's claims folder has been returned to the Board for further appellate review. A remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board's analysis in this decision has been undertaken after such critical reevaluation of all the evidence as it pertains to the proper rating for the initial rating period that remains on appeal. In February 2012, this matter came before the Board from a December 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board denied a rating in excess of 10 percent rating for right knee arthritis under Diagnostic Code (DC) 5003 and granted a separate 10 percent rating for right knee instability under DC 5257. The Board also denied an increased rating in excess of 10 percent for left knee arthritis, but awarded a separate 10 percent for left knee instability. As stated in the December 2012 joint motion for partial remand, the Veteran abandoned his appeal as to the left knee disability ratings. The Veteran and his wife provided testimony at an October 2011 Travel Board hearing before the undersigned in Indianapolis, Indiana. A transcript of the hearing is associated with the claims folder. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's right knee degenerative joint disease has been manifested by X-ray findings of degenerative changes, primarily in the medial compartment, daily pain, and noncompensable but painful limitation of motion of flexion to 128 degrees, and extension to 0 degrees. 2. Throughout the rating period on appeal, the Veteran's right knee instability has been manifested by difficulty getting up from a seated position and occasional episodes of giving way, more nearly approximating slight instability. 3. Throughout the rating period on appeal, the Veteran has had a tear of the medial meniscus which has not been productive of symptoms not compensated under different ratings criteria. CONCLUSIONS OF LAW 1. For the entire increased rating period on appeal, the criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003 (2012). 2. For the entire increased rating period on appeal, the criteria for an evaluation in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5257 (2012). 3. For the entire increased rating period on appeal, the criteria for a separate evaluation for a medial meniscus tear have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.14, 4.71a, Diagnostic Codes 5258, 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issues decided herein. The RO sent the Veteran a letter in August 2009 that informed of the requirements needed to establish an increased evaluation for his right knee disability. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the August 2009 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. The Veteran has been afforded an adequate examination on the issue of an increased rating for the service-connected right knee disability. VA provided the Veteran with an examination in December 2009. Treatment records were reviewed, the Veteran's history was taken, and a complete examination with clinical measures was conducted, to include obtaining X-rays and documenting range of motion measurements. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such painful motion, weakness, impaired endurance, incoordination, or instability upon repetition. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of an increased rating for the service-connected right knee disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Regarding the October 2011 Board personal hearing, when conducting a hearing, a Veterans Law Judge (VLJ) must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010); 38 C.F.R. § 3.103 (2012). The VLJ also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the October 2011 Board personal hearing, the VLJ specifically noted the issues on appeal. Then, having heard the Veteran's evidence, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the VLJ asked for evidence that might be used to substantiate the Veteran's claim for increased rating for the right knee. The VLJ queried the Veteran specifically regarding the current extent of the Veteran's right knee disabilities, to include limitation of motion and instability. During the course of developing this claim, the Veteran indicated in an October 2009 authorized release form that he had had treatment from Dr. S. Relevant records were submitted through the Veteran's representative. During the course of the hearing before the undersigned VLJ, the Veteran mentioned that he had a brace issued by Dr. S. According to the December 2009 VA examination report, the Veteran has only sought treatment through Dr. S. The Dr. S. records had already been obtained. Therefore, the VLJ substantially complied with the requirements of 38 C.F.R. § 3.103. See Bryant, 23 Vet. App. at 496-97. The December 2012 joint motion for partial remand did not identify any errors under either the duty to notify or the duty to assist which may have resulted in prejudice to the Veteran. Following the Court's December 2012 Order remanding this case to the Board, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1. In addition, 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.3, 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. Additionally, 38 C.F.R. § 4.10 provides that the basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Diagnostic Codes relevant to this case are 5003, 5010, and 5257-5261. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. The Veteran has already received separate ratings under DCs 5003 and 5257 in the February 2012 Board decision. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under more than one diagnostic code; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Evaluation of musculoskeletal disabilities also includes consideration of functional loss due to pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination, and of impairment of a veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Disability Rating for the Right Knee Service connection was granted for degenerative changes of the right knee in a September 1997 rating decision. Although the RO used Diagnostic Code (DC) 5257 to assign the initial 10 percent evaluation for the right knee disability, it is apparent from the findings in the 1997 rating decision that service connection was not granted for instability, but rather was granted for painful arthritis (degenerative changes). Specifically, the RO's September 1997 rating decision lists degenerative changes of both knees as the diagnosed disabilities for which service connection was being granted, and states that X-ray findings and pain on exercise were the bases for the assigned evaluations. In the Reasons and Bases section of the 1997 rating decision, there were no findings of instability, and a separate compensable rating for instability of either knee was not assigned. The evidence at the time of the 1997 rating decision included X-ray evidence of arthritis, but did not demonstrate any limitation of motion of either knee (see February 1997 VA examination findings), including limitation of motion to a compensable degree under Diagnostic Codes 5260 (limitation of flexion) or 5261 (limitation of extension). Although the RO used DC 5257 in assigning the initial disability rating for degenerative arthritis of the knees, the reasons and bases of the 1997 rating decision reflect that the initial 10 percent rating was assigned for painful arthritis that had full range of motion on testing; therefore, the 1997 rating decision actually applied the provisions of DC 5003 in assigning the initial 10 percent rating for degenerative arthritis of the right knee, notwithstanding the use of DC 5257. In June 2009, the Veteran filed claims for increased ratings (in excess of 10 percent) for right and left knee disabilities (the service-connected degenerative arthritis). The RO denied the claim for increase in the December 2009 rating decision that is the subject of this appeal, and also appropriately changed the Diagnostic Code under which the disabilities were evaluated from DC 5257 to DC 5003 to more accurately reflect the disability for which service connection had been granted (painful arthritis) in 1997. In the Board's February 2012 decision, a separate compensable (10 percent) rating was awarded on the basis of slight instability in addition to the existing 10 percent rating for degenerative changes. The Veteran's right knee ratings are currently under both DC 5257 and DC 5003 in accordance with VAOPGCPREC 9-98. Diagnostic Code 5003 provides that, for degenerative arthritis that is established by X-ray findings, when there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating exacerbations. Alternatively, when there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. The Board will begin by reviewing the evidence pertinent to the rating period on appeal. In December 2008, the Veteran sought treatment at Central Indiana Orthopedics for complaints of right knee pain after planting his foot and twisting the knee the day prior. Before that injury, he reported no significant problems with his knee. Currently, he had pain to the medial joint line and occasional popping in the knee. An MRI showed a bucket-handle tear of the medial meniscus, small joint effusion, and medial compartment joint space and mild cartilage loss suggesting osteoarthritic change. In January 2009, the Veteran underwent a right knee arthroscopic partial medial meniscectomy and chondroplasty patella with release of plica at Saint John's Orthopedic Surgery Center. The postoperative diagnosis was right knee medial meniscus tear and chondromalacia patella. The Veteran was afforded a VA examination in December 2009. The claims file was reviewed, including records from the surgery earlier that year, and the Veteran was examined. The Veteran reported giving way, instability, pain, stiffness, and weakness of both knees. He denied deformity, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, and flare-ups of joint disease. There was no limitation on walking; however, the Veteran used a brace frequently. On clinical examination, the December 2009 VA examiner noted a normal gait, no evidence of bone loss, no crepitation, clicks, or snaps, and no grinding, instability, or patellar abnormality. On the right knee, there was meniscus abnormality, with no locking, effusion, or dislocation. The right medial meniscus was surgically absent. McMurray's test was positive on the right side. Range of motion testing revealed flexion to 128 degrees and extension to 0 degrees on the right side, with no objective evidence of pain with active motion or following repetitive motion on either side. Further, there were no additional limitations after three repetitions of range of motion. X-rays showed bilateral degenerative changes. The examiner assessed bilateral knee arthralgia, noting that the disability would have mild effects on chores, shopping, exercise, sports, recreation, traveling, and driving, but no effects on feeding, bathing, dressing, toileting, or grooming. He was currently unemployed, but there was no indication that his unemployment was due to his knee disabilities. In December 2010, the Veteran returned for treatment at Central Indiana Orthopedics with complaints of right knee pain and dull aching in the medial aspect. It was worse with heavy activity. He had been doing some snowmobiling lately, and this had aggravated the knee. He had good relief of symptoms after the January 2009 surgery until recently. On physical examination, the right knee had some limited range of motion with crepitus. There was no opening to varus or valgus stress, and anterior drawer, posterior drawer, Lachman, McMurray, and pivot shift testing were all negative, although there was mild pain with McMurray's. X-rays of the right knee showed medial compartment narrowing. The doctor assessed right knee degenerative joint disease, primarily over the medial compartment. In February 2011, the Veteran reported that he had been wearing a brace on his right knee for high activity situations, and that he did not have any further aching in the knee. There was mild tenderness to palpation about the medial joint line, and mild patellofemoral crepitation with passive range of motion of the knee. There was also slightly limited range of motion of the right knee. The collateral ligaments were stable to varus and valgus stressing. McMurray's and Lachman testing were negative, although McMurray testing reproduced some pain in the knee. The doctor continued his assessment of right knee degenerative joint disease, and recommended ongoing use of a brace and a home exercise program. At the October 2011 Board hearing, the Veteran testified that he had worn a brace since his 2009 surgery for instability, the right knee occasionally gave out, and he had fallen on several occasions. He reported a pain at a level of 5 to 10 out of 10 in severity, with daily swelling. The knee also locked and popped. He estimated that he could flex the knee to 95 degrees without pain. He reported that he had to use his hands to help himself stand up from a sitting position due to instability and pain in both knees. On the question of whether the Veteran is entitled to evaluations in excess of 10 percent for his right knee disabilities based on the evidence of record relevant to the rating period on appeal, outlined above, the degenerative changes (arthritis) of the right knee is rated at 10 percent under DC 5003, which rates degenerative arthritis, including painful motion associated with the arthritis, even noncompensable limitation of motion. DC 5003 provides 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 (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable. However, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, DC 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5003 for the right knee degenerative changes (arthritis), including the pain and noncompensable limitation of motion the Veteran has in the knee. The Veteran is already assigned a 10 percent evaluation for the right knee; because there is only one major joint involved (the knee), and there are no incapacitating exacerbations, a 10 percent rating for each knee is the maximum available schedular disability rating under DC 5003. 38 C.F.R. § 4.71a. The joint motion for partial remand set aside that part of the February 2012 Board decision that denied a separate rating under DC 5259 due to the anti-pyramiding rule at 38 C.F.R. § 4.14. The issue was remanded for readjudication by the Board to provide additional reasons and bases on the question of whether an additional, separate rating of 10 percent under DC 5259 for a right knee disability was warranted. Four DCs are relevant to the anti-pyramiding rule here - 5003, 5257, 5258, and 5259. DC 5003 provides for compensable ratings either where limitation of motion is compensable under relevant DCs for the joint (5260 and 5261 here) or where there is limitation of motion manifest by swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5258 and DC 5259 address symptomatic cartilage disabilities. DC 5258 and 5259 ratings criteria are different from each other only in that the semilunar cartilage is dislocated in 5258 and surgically absent in DC 5259. DCs 5258 and 5259 overlap with each other in pain, effusion, and locking, and overlap with DC 5003 in pain and locking as a form of limitation of motion. See also Esteban, 6 Vet. App. at 261-62 (stating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). DC 5257 does not address effusion, locking, swelling, spasm, or painful motion; it does address ligamentous instability and patellar subluxation, which are not components of the criteria of DCs 5003, 5258, or 5259. The record shows the Veteran underwent a partial meniscectomy procedure on the right side in 2009. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The record shows that the Veteran tore his right medial meniscus without dislocation and underwent partial surgical removal. The Veteran does not allege and the record does not otherwise show that he has or had a dislocated meniscus of the right knee during the period on appeal. DCs 5258 and 5259 overlap with each other in pain, effusion, and locking, but not as to dislocation or surgical absence. Given the evidence of surgical absence but not dislocation, DC 5259 is appropriate in this case, not DC 5258. The Veteran's statements regarding pain in his knee, swelling, fatigue, locking, and popping were used as part of the objective evidence of limitation of motion which are the basis of the 10 percent rating under DC 5003. Apart from locking, the Veteran had mechanically intact range of motion on objective testing past 90 degrees and well beyond the compensable standard of DCs 5260 and 5261. If the knee locks, then he would have an intermittent inability to flex the knee that would constitute a limitation of motion beyond that shown on testing. In this case, there is a finding of an effusion into the joint in December 2008, which has not reappeared post surgery. The Veteran has had complaints of knee swelling since the surgery. The December 2008 intake report indicates that he had no significant complaints regarding his right knee prior to injuring his knee the previous day. If the symptoms regarding painful motion are reassigned to DC 5259 in order to determine if the DC would be more favorable to the Veteran, to avoid pyramiding, the 10 percent rating under DC 5003 could no longer be separately assigned; otherwise, the rating of the overlapping symptoms of painful motion and locking under both DC 5259 and DC 5003 would constitute pyramiding. The symptoms which overlap between DC 5259 and DC 5003 are pain and locking in that it limits his movement. VAOPGCPREC 9-98 interpreted that the medical nature of the particular disability to be rated under a given diagnostic code determines whether the diagnostic code is predicated on loss of range of motion, and that DC 5259 requires consideration of 38 C.F.R. sections 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion. VAOPGCPREC 9-98 analyses how the removal of semilunar cartilage would involve pyramiding with a rating based on arthritis to the extent the removal of semilunar cartilage produces loss of motion: With respect to DC 5259, removal of the semilunar cartilage (or meniscus, see Robert Bruce Salter, Textbook of Disorders and Injuries of the Musculoskeletal System 531-32 (2d ed. 1983)), may resolve restriction of movement caused by tears and displacements of the menisci. See Arthur J. Helfet, Clinical Features of Injuries to the Semilunar Cartilages, in Disorders of the Knee 110 (Arthur J. Helfet ed., 2d ed. 1982). However, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. See Robert H. Miller, III, Knee Injuries, in 2 Campbell's Operative Orthopedics 1146 (S. Terry Canale ed., 9th ed. 1998). Therefore, limitation of motion is a relevant consideration under DC 5259, and the provisions of sections 4.40 and 4.45 must be considered. Of the symptoms which do not overlap, the Veteran first had effusion in December 2008, but swelling after his surgery. If a rating under DC 5259 were assigned, the rating under DC 5259 would constitute pyramiding with a rating under DC 5003. In either situation, only one 10 percent rating would be warranted, which is what has been assigned. To assign a separate 10 percent rating for pain, swelling, popping, and locking under DC 5259 would create a second rating for some of the same overlapping symptoms. Such a rating would violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban at 261-62 (stating that the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Moreover, the highest available rating under Diagnostic Code 5259 is 10 percent; thus, DC 5259 does not allow for a higher rating than DC 5003, and no higher rating is available for changing the DC from DC 5003 to DC 5259. Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability, allows for a separate compensable rating for instability of the knee. Under Diagnostic Code 5257, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The Board finds that, for the entire rating period on appeal, the criteria for separate 10 percent disability ratings for right and left knee instability have been granted by the Board under Diagnostic Code 5257, effective from June 11, 2009. As explained in the Board decision, and by VA's General Counsel in VAOPGCPREC 23-97 and 9-98, separate disability ratings are warranted for the specific disabilities of arthritis and/or limitation of motion (DCs 5003, 5260, 5261) and instability (DC 5257) because these specific DCs do not contain overlapping symptomatology, whereas other DC combinations do contain overlapping symptomatology. Throughout the rating period on appeal, the Veteran has experienced right knee instability manifested by difficulty getting up from a seated position and occasional episodes of giving way, more nearly approximating slight instability, and has experienced left knee instability manifested by difficulty getting up from a seated position, more nearly approximating slight instability, so as to warrant separate 10 percent disability ratings under Diagnostic Code 5257 for left and right knee instability. 38 C.F.R. § 4.71a . The Board finds that the preponderance of the evidence is against a finding of more than slight instability of the knees for the rating period. The favorable evidence includes testimony at the 2011 Board hearing by the Veteran and his wife that the Veteran had giving way and instability of both knees, such that he had to use his hands to get himself from a sitting to a standing position. His wife corroborated that he had fallen on several occasions due to knee instability. Although the Veteran testified that he experienced giving way and instability of the knees, to the point that he had to use his hands to get from a sitting to a standing position, the evidence weighing against such assertion includes that there have been no clinical findings of instability. For instance, at the 2009 VA examination, described in detail above, the examiner did not find any instability of the ligaments. Moreover, at December 2010 and February 2011 evaluations at Central Indiana Orthopedics, no instability of the ligaments was found. The Board previously resolved reasonable doubt in favor of the Veteran in finding that his and his wife's lay statements of instability warranted a separate 10 percent evaluation for instability of the right knee with episodes of giving way and falling under Diagnostic Codes 5257. In light of the lack of clinical findings of instability, the Board finds that the evidence does not demonstrate instability that can be characterized as either moderate or severe. Thus, the evidence demonstrates entitlement to separate 10 percent evaluations, and no higher, for instability of the right knee under Diagnostic Code 5257 throughout the rating period on appeal. The Board has also considered whether any other diagnostic code would allow for increased ratings for the Veteran's right knee disabilities, manifested by instability or limitation of motion. Diagnostic Code 5260 contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 60, 45, 30, and 15 degrees, disability ratings of 0, 10, 20, and 30 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had flexion to 128 degrees on the right at the VA examination. While the Veteran at one point testified in October 2011 that he guessed that he probably could flex his left knee to 45 degrees, he clarified that he could flex his right knee to 95 degrees. There is no other credible evidence of record demonstrating flexion limited to 60 degrees or less. As the criteria for even a 10 percent disability rating under Diagnostic Code 5260 (limitation of flexion to 45 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 10 percent under Diagnostic Code 5260 for arthritis of either knee for any period. 38 C.F.R. § 4.71a. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 5, 10, 15, 20, 30 and 45 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the Veteran's knee extension was to 0 degrees as measured at the 2009 VA examination. In addition, no other evidence of record shows extension measured to less than 0 degrees, although with considerations of painful and limited motion to which the Veteran has testified, there is at least some noncompensable limitation of motion of each knee as recognized by the assigned 10 percent disability rating for arthritis under Diagnostic Code 5003, which recognizes the arthritis, painful motion, and noncompensable limitation of motion due to pain, stiffness, and swelling. As the criteria for even a 10 percent disability rating under Diagnostic Code 5261 (limitation of extension to 10 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 10 percent under Diagnostic Code 5261 for arthritis of either knee for any period. 38 C.F.R. § 4.71a. In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. The record shows that the Veteran underwent a partial medial meniscectomy, not a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. The Board has also considered whether any separate ratings are available based on the evidence. The Board has previously assigned separate ratings for arthritis and instability, but has specifically found that a separate rating for a semilunar cartilage disability is not warranted. The Board also acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both 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. However, in the present case, the evidence does not establish loss of either flexion or extension to a compensable degree; thus, assignment of separate evaluations for limitation of flexion and extension of the right leg is not appropriate here. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's bilateral knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The schedular criteria for rating disabilities of the knee anticipate and reasonably describe the Veteran's right knee disabilities, including degenerative arthritis, instability, and medial meniscus impairment. The Veteran's right knee disabilities have been manifested by degenerative joint disease, painful but noncompensable limitation of motion, locking, stiffness, giving way, and instability. The schedular rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provides ratings for such noncompensable limitation of motion due to painful arthritis (Diagnostic Codes 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited to orthopedic factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). The Veteran has been awarded separate evaluations for arthritic painful motion and instability, even though the medical evidence of records fails to demonstrate clinical findings of instability so as to warrant separate ratings under Diagnostic Code 5257. The Veteran's degenerative arthritis and medial meniscus impairment have not been productive of distinct symptoms that would allow assignment of separate compensable ratings under other DCs, as discussed above. In this case, comparing the Veteran's disability level and symptomatology of the disabilities of the right knee to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The first Thun step is not met; therefore, the Board finds that the criteria for referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for right knee degenerative joint disease is denied. An evaluation in excess of 10 percent for right knee instability is denied. A separate compensable disability evaluation for right knee semilunar cartilage impairment is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs