Citation Nr: 1316359 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-46 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee for the period prior to November 15, 2012, and in excess of 20 percent as of November 15, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active duty for training from October 1962 to April 1963, and active service from July 1963 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that granted service connection for degenerative joint disease of the right knee, and assigned an initial 10 percent rating. The Veteran testified at a videoconference hearing in September 2010 before a Veterans Law Judge who is no longer a member of the Board. In April 2012, the Board afforded the Veteran an opportunity for another hearing with a Veterans Law Judge who would participate in the decision. The following month, the Veteran responded that he did not want another hearing. In April 2011, the Board issued a decision that denied entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee. The Veteran appealed that April 2011 Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, in a January 2012 Order, the Court vacated the Board's decision and remanded the claim to the Board for readjudication in accordance with the Joint Motion. In October 2012, the Board remanded this matter for additional development. In a February 2013 rating decision, the Veteran was granted a 20 percent disability rating, effective November 15, 2012, the date of the VA examination showing an increase in severity. A February 2013 supplemental statement of the case shows that the initial 10 percent disability rating for the period prior to November 15, 2012 was continued. The Board notes that because the assigned ratings of the Veteran's service-connected right knee disability do not represent the maximum ratings available, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to service connection for kidney toxicity, claimed as secondary to medications taken for the treatment of the service-connected right knee, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to November 15, 2012, the Veteran's right knee disability was manifested by subjective complaints of pain, stiffness, instability, and weakness; decreased speed of the knee joint; and objective findings of degenerative arthritis of one major joint group, extension limited to 0 degrees, and flexion, limited at most, to 90 degrees with no objective findings of instability and an asymptomatic scar. 2. As of November 15, 2012, the Veteran right knee disability demonstrated extension limited to 15 degrees and flexion to 120 degrees, with no objective evidence of instability and an asymptomatic scar. 3. Throughout the appeal, the Veteran's right knee disability is also manifested by symptoms analogous to symptomatic removal of the semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for DJD of the right knee for the period prior to November 15, 2012, and in excess of 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5261 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent rating for symptomatic removal of semilunar cartilage of the right knee have been met, effective March 13, 2006. 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, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2006 and October 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. In fact, the Veteran was requested to identify any additional private medical records not associated with the claims file in an October 2012 letter and when contacted by telephone contact by VA personnel in December 2012, he advised that he had not received any current treatment for his knee condition from private health care providers. The Veteran presented testimony during a September 2010 Board hearing. VA has obtained examinations in April 2007 and in November 2012 with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. The diagnostic codes pertaining to range of motion do not subsume those regulations, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on that basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 38 C.F.R. §§ 4.40, 4.45 (2012); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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 (2012). Therefore, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's DJD of the right knee was initially rated 10 percent under Diagnostic Code 5260-5010, but was then changed to 5261-5010 when a higher 20 percent rating was assigned for limitation of extension, effective November 15, 2012. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 pertains to traumatic arthritis. 38 C.F.R. § 4.71a , Diagnostic Code 5010 (2012). Diagnostic Code 5260 pertains to limitation of flexion of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 pertains to limitation of flexion of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Codes 5260, for limitation of flexion of the leg, and Diagnostic Code 5261, for limitation of extension of the leg. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5260, limitation of flexion to 60 degrees warrants a 0 percent rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5261, limitation of extension to 5 degrees warrants a 0 percent rating. Limitation of extension to 10 degrees warrants a 10 percent rating. Limitation to 15 degrees warrants a 20 percent rating. A 30 percent rating requires limitation of extension to 20 degrees. A 40 percent rating requires limitation of extension to 30 degrees. A 50 percent rating requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a (2012). Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2012). Under Diagnostic Code 5257, for rating recurrent subluxation or lateral instability, a 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a (2012). The words slight, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It also should be noted that use of descriptive terminology such as mild by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2 , 4.6 (2012). A claimant who has arthritis or limitation of motion, and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg, may be assigned for disability of the same knee. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Service records include a line of duty investigation report showing that in August 1963 while participating in training, the Veteran sustained an injury to his right knee. Medical examination revealed that internal damage had been done to the right knee and the medical diagnosis was possible medial cartilage injury. In a September 2005 private medical record, I. Ansari, M.D. noted that the Veteran complained of right knee pain that had been ongoing since 1963. The Veteran stated he had surgery in service for cartilage. Since that time, his right knee pain had been getting worse over the last several years. He had tried several cortisone injections, NSAIDs, and physical therapy and continued to complain of pain including catching, locking, giving way, and soreness. The Veteran was being seen for further evaluation. Physical examination of the right knee revealed mild effusion. Range of motion in degrees was from 0 degrees of extension to 140 degrees of flexion. There was positive medial joint line tenderness with McMurray. There was mild patellofemoral crepitus. He had a well-healed medial and lateral incision. X-rays were taken and revealed significant chrondrocalcinosis and medial lateral menisci with early degenerative changes. The impression also include right knee possible meniscal tear. The plan noted that Dr. Ansari thought that the Veteran's symptoms were coming from the early osteoarthritis and chrondrocalcinosis, possibility of meniscal pathology. In an October 2005 medical record, Dr. Ansari noted that the Veteran reported occasional catching and locking, and achy soreness. Examination showed positive effusion, range of motion 0 degrees extension and 140 degrees of flexion with diffuse medial and lateral joint line tenderness with McMurray's medially and laterally. There was questionable locking. An MRI revealed maceration of lateral meniscus, tear in the medial meniscus, torn anterior cruciate ligament, sprain of the lateral collateral ligament, chondromalacia of the patella and weight bearing surface of the lateral femoral condyle, and moderate joint effusion. The impression was right knee pain with medial and lateral meniscus, and mild osteoarthritis. The Veteran was provided with Cortisone injections. In December 2005, the Veteran underwent right knee arthroscopy, meniscectomy, and chondroplasty. Immediately following that procedure, he had full range of motion from 0 degrees of extension to 140 degrees of flexion without pain in his right knee. In a March 2006 statement, the Veteran indicated that he had right knee pain, discomfort, and swelling and had tripped, slipped, and lost his footing as a result of his right knee. He also related that it has been a long time since he lost time from work because of his right knee, but that it caused him to change from a non-sedentary position to a less well compensated sedentary desk job in the 1980s. In an April 2006 letter, Dr. I.A. noted that the benefits of the Veteran's arthroscopy were temporary and that he most likely would require additional surgery on his right knee in the future. The Veteran's spouse indicated in a statement dated in April 2006 that the Veteran walked with a limp, experienced difficulty walking on uneven terrain and on concrete floors, had right knee swelling, and had tripped and fallen many times due to weakness in his right knee. In an undated statement received in September 2006, G.R., a friend of the Veteran's, conveyed that the Veteran had a slight limp and seemed to favor one leg. The Veteran was afforded a VA examination in April 2007. He complained of constant pain which was elicited by physical activity and alleviated by rest, stiffness, swelling, weakness, and occasional giving way and locking. He denied incapacitation due to those symptoms. However, he stated that he was unable to run and was unable walk for long periods. Physical assessment revealed that the Veteran's posture and gait were within normal limits. It was noted that he did not use any ambulatory aid. Scars were present on his right knee. There was locking pain, crepitus, and signs of edema. Range of motion was to 0 degrees extension and to 110 degrees flexion. Pain was present at the extreme of flexion. Pain also was produced with repeated use, but there was 0 degrees of additional limitation of motion. Repeated use produced no additional limitation of motion as a result of fatigue, weakness, lack of endurance, or incoordination. Ligament stability tests were not conducted because the Veteran had a lot of right knee pain. X-rays of his right knee showed degenerative arthritic changes, namely moderately advanced degenerative joint disease. The examiner opined that the Veteran experienced limited exercise and ambulatory capacity as a consequence thereof. In a July 2007 rating decision, service connection was granted and an initial 10 percent disability rating was assigned for DJD of the right knee pursuant to Diagnostic Codes 5260-5010. During the September 2010 board hearing, the Veteran testified that the problems he was experiencing with his right knee were pain and swelling, but mostly lack of use. He furthered that he could not run and had problems walking in any extended amount. He could walk no more than half a mile. When walking up and down stairs, the Veteran stated that his right knee gave way, and that it was very unstable. When asked if he had problems with flexion or extending his knee, the Veteran stated that it would not extend all the way, and when asked how far, the Veteran replied "seventy-five percent". He also had problems sitting for long periods of time and had problems with stiffness if in the same position for very long. He also complained about instability in his knee. He testified that his right knee never locked up and that he had not had any dislocations of the knee joint for several years. He took Tylenol occasionally or Advil. He does not do any types of physical therapy, but rode his bike for about 15 minutes. The Veteran testified that he was currently working and that he was an accountant in a business office. The Veteran stated that he had not received treatment for about three years. In a May 2012 private medical record, B.D. Rosenstein, M.D. noted that the Veteran reported open surgery for meniscectomy in the early 1960s and more recently a debridement arthroscopy in December 2005 with findings of tricompartmental degenerative changes and complex mensical tears. The Veteran reported that he continued to have arthritic symptoms and that recently with treadmill activity his right knee had been swollen and painful. Physical examination revealed that there was a large effusion and he had valgus alignment. There was a small flexion contracture with pain and further flexion to 90 or 100 degrees with pain. There was no instability. There was lateral, more so than medial, joint line tenderness, and extensive patellar crepitus. The impression was severe osteoarthritis right knee. At a November 2012 VA knee examination, the Veteran complained of a constant ache. If he sat, within 10 minutes his right knee would lock and it would hurt to rise again. He had been wearing a brace for about 6 months. He exercised four to five times a week and it helped to relieve the pain and swelling. He took Advil or Tylenol for pain. The Veteran reported that in November 1963 he had cartilage removed medially and laterally on the right knee. The Veteran did not have flare-ups that impacted the function of his knee or lower leg. Range of motion testing revealed that the Veteran had flexion to 120 degrees with objective evidence of painful motion beginning at 120 degrees and extension ended at 15 degrees with painful motion beginning at 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test flexion ended at 120 degrees and extension at 15 degrees. The examiner indicated that the Veteran did not have additional limitation in range of motion of the knee and lower leg following repetitive-use testing and did not have any functional loss or functional impairment of the knee and lower leg. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of either knee. Strength testing was 5/5. The Veteran had normal joint stability on examination. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran has never had shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted that the Veteran had meniscal conditions or surgical procedures for a meniscal condition. The Veteran has had a meniscus (semilunar cartilage) condition with frequent episodes of joint pain. He had an original open meniscectomy in November 1963 and arthroscopy in September 2005. The Veteran had residual signs or symptoms due to a meniscectomy described as pain and flexion contracture. The VA examiner noted that the Veteran had scars related to his condition, but that they were not painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). The Veteran used a brace. X-rays revealed no acute fracture or dislocation. The impression was moderate degenerative joint disease, and meniscal chondrocalcinosis, as may be seen in the setting of calcium pyrophosphate dihydrate. The examiner indicated that the Veteran's knee condition impacted his ability to work. It was noted that the Veteran would retire in December 2012. On leaving service, he was a sales manager for 24 years, but he had trouble standing all day and became an accountant which he had been doing for 26 years. He could do the accounting because he sat at a desk. He had trouble getting up. Activities of daily living were "okay" and he could dress, undress, and handle his food and toileting. The diagnosis was DJD of the right knee. In a February 2013 rating decision, the Veteran was granted a 20 percent rating for DJD of the right knee, effective November 15, 2012, the date of the VA examination showing an increase in severity, pursuant to Diagnostic Codes 5010-5261. Prior to November 15, 2012 prior to November 15, 2012, the Veteran's DJD of the right knee was rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260-5010. First addressing limited motion, the evidence prior to November 15, 2012, shows that the Veteran's right knee extension was consistently to 0 degrees. Extension limited to 5 degrees warrants a 0 percent rating under Diagnostic Code 5261. Therefore, limitation to 0 degrees does not warrant a compensable rating. While the Veteran reported during the September 2010 Board hearing that his knee would not extend all the way, only to "seventy-five percent", there is no objective medical evidence showing that the Veteran had extension in his right knee limited to 15 degrees. Furthermore, in a May 2012 private medical record, the physician specifically reported that the Veteran had flexion limited to 90 or 100 degrees, but there was no mention of the Veteran having limited extension. Therefore, the Board finds that because the evidence prior to November 15, 2012, does not show that the Veteran had compensable limitation of right knee extension, that Diagnostic Code 5261 cannot serve as a basis for an increased rating or separate rating in this case because the Veteran has not met the criteria for a compensable rating. Moreover, while there has been increased limitation of flexion of the right knee, shown in the May 2012 private record to 90 degrees, that limitation of flexion has not been shown to an extent that would warrant a compensable rating under Diagnostic Code 5260 for the period prior to November 15, 2012. The Board finds that no more than a 10 percent rating is warranted for the Veteran's DJD of the right knee with limitation of motion due to X-ray evidence of arthritis with a noncompensable limitation of motion. With regard to whether the Veteran is entitled to a rating higher than 10 percent under Diagnostic Code 5010 and 5003 for arthritis, the Board concludes that he is not. Under Diagnostic Code 5003 and 5010, a 20 percent rating is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The knee is considered a major joint. 38 C.F.R. § 4.45 (2012). Accordingly, because there are not two or more major or minor joints involved, and because the Veteran is only service-connected for one knee, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under this code. That remains the highest rating warranted for the period prior to November 15, 2012, even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Board is aware of the Veteran's complaints of pain, stiffness, and swelling, those symptoms are not shown by competent, objective evidence to be so disabling as to warrant even the minimal compensable rating under Diagnostic Code 5260, much less the next higher, 20 percent rating under that diagnostic code. Prior to November 15, 2012, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that limitation of flexion would be compensable under Diagnostic Code 5260 or that limitation of extension would be compensable under Diagnostic Code 5261. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Therefore, the Board finds that the preponderance of the evidence is against the assignment of an increased rating prior to November 15, 2012. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of November 15, 2012 Effective November 15, 2012, the date of a VA examination showing an increase in severity, the Veteran's DJD of the right knee was increased to a 20 percent rating, based on limitation of extension, under Diagnostic Code 5010-5261. With regard to limited motion of right knee flexion since November 15, 2012, the Veteran demonstrated flexion to 120 with pain at the end of range of motion. As flexion is not limited to 30 degrees, even with consideration of limitation due to pain and other factors causing functional loss, the Board finds that the criteria for a higher rating of 20 percent under Diagnostic Code 5260 are not demonstrated. Furthermore, as flexion is not limited to 45 degrees, even with consideration of additional functional limitations due to pain and other factors, the Board finds that no separate rating is warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, with regard to limited motion of right knee extension, the November 15, 2012, VA examination provides the first objective evidence demonstrating extension limited to 15 degrees, the criteria required for the 20 percent disability rating. That examination was the basis for the February 2013 grant of a higher 20 percent rating, effective November 15, 2012, and under the Diagnostic Code 5010-5261. However, a rating in excess of 20 percent for limitation of extension is not warranted as the Veteran's right knee extension has not demonstrated limitation of motion to 20 degrees. Even considering functional loss due to pain and other factors, extension was still not limited such that the criteria for the higher 30 percent disability rating for limitation of extension were met. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). For the period beginning on November 15, 2012, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that limitation of flexion would be compensable under Diagnostic Code 5260 or that limitation of extension would be compensable at a rating higher than 20 percent under Diagnostic Code 5261. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). The Board finds no basis for assignment of separate ratings for limited flexion and extension. Other Considerations The Board has also considered the applicability of other potentially applicable diagnostic codes for rating the Veteran's service-connected DJD of the right knee for both periods on appeal. However, the Veteran has never demonstrated or been diagnosed with ankylosis of either knee or dislocated semilunar cartilage. Therefore, Diagnostic Codes 5256 and 5262 are not for application. The Board has also considered Diagnostic Code 5257, for recurrent subluxation or lateral instability of the knee. However, all of the VA examinations and private medical records are clearly negative for findings of instability. For that reason, there also is no basis for assignment of separate ratings for limited motion and instability. While give-way has occasionally been reported by the Veteran , it has not been objectively confirmed, thus the Board finds that a separate compensable rating is not warranted. However, the Board does find that the evidence is at least in equipoise as to whether a separate rating is warranted under Diagnostic Code 5259, which contemplates symptomatic removal of semilunar cartilage (meniscus). The Veteran underwent a meniscectomy in December 2005, and his knee has remained symptomatic since the surgery. The aforementioned objective findings reveal sufficient additional objective findings and symptoms of crepitus and tenderness which may be attributable, at least in part, to the documented surgical repairs of semilunar cartilage in the right knee, and are separate symptomatology from the limitation of motion for which the arthritis and limitation of motion ratings have been assigned. A 10 percent rating is the maximum, and only, available rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a (2012). Thus, the Board finds that a separate 10 percent rating, but not higher, under Diagnostic Code 5259 for the right knee disability is warranted since the March 13, 2006, effective date of the grant of service connection for DJD of the right knee. The Board has also considered whether a separate rating is available for the scar on the Veteran's right knee. The Board notes amendments were recently made to the rating criteria for skin, effective October 23, 2008. However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of these issues under the revised criteria, a compensable rating for a scar will only be considered under the rating criteria in effect prior to October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008); 38 C.F.R. § 4.118 (2008). A compensable rating under Diagnostic Code 7801, which rates impairment for scars other than the head, face, or neck scar requires that the scar be deep or cause limitation of motion and exceeds 6 square inches (39 square centimeters). The Veteran's scar does not meet the criteria for that rating. A compensable rating under Diagnostic Code 7802 for superficial scars that do not cause limitation of motion requires that the scar cover an area of 144 square inches (929 square centimeters), which has not been shown. Scars that are unstable warrant a 10 percent rating under Diagnostic Code 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scar has not been shown to be unstable, rendering Diagnostic Code 7803 inapplicable. The scar was not painful on examination. So, Diagnostic Code 7804 is also inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to Diagnostic Code 7805 is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. The governing norm in exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (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. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Rating Schedule reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability rating for DJD of the right knee, inadequate. The Veteran's right knee disabilities are rated under Diagnostic Codes 5010, 5261, 5262, and most recently 5259, the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability ratings for his right knee disability on appeal. The criteria for the disability ratings describe the Veteran's disability level and symptomatology. In addition, the evidence does not show frequent hospitalization or marked interference with employment. Therefore, the currently assigned schedular rating is adequate and no referral is required. Moreover, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected DJD of the right knee. Indeed, the Veteran has been shown to be employed throughout this appeal, until December 2012, when he retired. The issue of entitlement to a total disability rating based on individual unemployability due to the service-connected right knee disabilities has, therefore, not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee prior to November 15, 2012, and in excess of 20 percent as of November 15, 2012, is denied. A separate 10 percent rating for symptomatic removal of semilunar cartilage of the right knee is granted, effective March 13, 2006. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs