Citation Nr: 1316629 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-34 454A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected degenerative joint disease of the right knee prior to June 6, 2012. 2. Entitlement to an evaluation in excess of 40 percent for the service-connected degenerative joint disease of the right knee beginning on June 6, 2012. 3. Entitlement to a separate compensable evaluation for the service-connected right knee disability based on instability beginning on June 6, 2012. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1969 and from October 1983 to June 1988. He had service in the Republic of Vietnam from March 1968 to April 1969. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the RO that denied an evaluation in excess of 10 percent for the service-connected right knee disability. In December 2009 and May 2012, the Board remanded the claim to the RO for further development. In a December 2012 rating decision, the RO assigned an increased 40 percent rating for the service-connected degenerative joint disease of the right knee, effective on June 6, 2012. As higher ratings for this disability were available both before and after June 6, 2012, and the Veteran was presumed to seek the maximum available benefit for the disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. The issue of service connection for a left knee disorder, to include as secondary to the service-connected right knee disability 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 and refers the matter to the AOJ for appropriate action. FINDINGS OF FACT 1. In May 2012, prior to promulgation of a final decision, the Veteran expressed his intent to withdraw the claim for a TDIU rating; hence, there is no question of fact or law remaining before the Board as to this matter. 2. Prior to June 6, 2012, the service-connected degenerative joint disease of the right knee was not shown to have been productive of a limitation of flexion to 60 degrees; a limitation of extension to 10 degrees; moderate recurrent subluxation or instability; ankylosis; or malunion of the tibia and fibula. 3. Prior to June 6, 2012, the Veteran is not shown to have the removal of semilunar cartilage or dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint. 4. Beginning on June 6, 2012, the service-connected degenerative joint disease of the right knee is not shown to be productive of a limitation of flexion to 60 degrees; a limitation of extension to 45 degrees; moderate recurrent subluxation; ankylosis; or malunion of the tibia and fibula. 5. Beginning on June 6, 2012, the Veteran is not shown to have the removal of semilunar cartilage with frequent episodes of locking, pain, and effusion to the joint. 6. Beginning on June 6, 2012, the service-connected right knee disability picture is shown to more nearly approximate that of a slight instability of the right knee. CONCLUSIONS OF LAW 1. As the criteria for withdrawal of a Substantive Appeal by the Veteran have been met, the Board has no further jurisdiction as to the matter of entitlement to a TDIU rating. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected degenerative joint disease of the right knee have not been met prior to June 6, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a including Diagnostic Code 5010-5261 (2012). 3. The criteria for the assignment of an evaluation in excess of 40 percent for the service-connected degenerative joint disease of the right knee have not been met for the period beginning on June 6, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a including Diagnostic Code 5010-5261 (2012). 4. The criteria for the assignment of a separate 10 percent evaluation for the service-connected right knee disability on the basis of instability have been met beginning on June 6, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent that the Veteran has expressed his clear intention to withdraw the claim of entitlement to a TDIU, a discussion of VCAA as to this matter is unnecessary. However, the Board concludes that the Veteran has been afforded appropriate notice under VCAA for the claims for an increased rating for the service-connected right knee. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a VCAA notice letter to the Veteran in December 2005, before the initial adjudication of the claims on appeal; however, the letter did not meet the notice requirements for increased rating claims. The Appeals Management Center (AMC) sent corrective notice letters dated in December 2009 and September 2010. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claims for increased ratings as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have and submit evidence in support of his claims to the AMC. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Letters dated in March 2006, January 2008, December 2009, and September 2010 provided this notice. Therefore, the RO/AMC effectively satisfied the remaining notice requirements with respect to the issues on appeal. Any timing defect with regards to the providing of this notice was cured by the readjudication of the claims, including by a December 2012 Supplemental Statement of the Case (SSOC). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The Board finds that all relevant, available evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. Service treatment and VA treatment records are associated with the claims file. The Board also notes that there is no identified relevant evidence that needs to be obtained in this regard. The Veteran was afforded VA examinations in January 2006, August 2007, March 2010, December 2010, and June 2012. With respect to the VA examinations that were provided, the Board notes that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The most recent VA examination provided is based on review of the claims file, taking a relevant history from the Veteran, and clinical evaluation of the Veteran. The examination report is adequate; the information provided by the VA examiner is supported by a thorough history, fully reasoned explanations and clinical findings and, as will be discussed at length below. Additionally, the June 2012 VA examiner complied with the May 2012 remand directives by providing current findings, range of motion measurements, identifying resulting functional loss due to the degenerative changes of the right knee, and discussing the extent of the Veteran's complaints of instability and recurrent subluxation in light of previous findings of ligament damage. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83. The VA examinations, taken as a whole, are fully sufficient to evaluate the appeal. In addition, no other probative medical or lay evidence demonstrates a worsening of the service-connected disability. Therefore, a new VA examination to rate the severity of the right knee is not warranted. Under the circumstances, the Board finds no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Withdrawal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 3 8 C.F.R. § 20.204. In a May 2012 statement, the Veteran expressed his clear intent to withdraw the issues of entitlement to a TDIU rating from appellate review. Consequently, there are no allegations of error of fact or law remaining for appellate review in connection with this matter. Accordingly, as this matter is found to be withdrawn, the appeal is dismissed. Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. 38 C.F.R. § 4.7. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, 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 assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," 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). Use of terminology such as "severe" by VA examiners and others, although 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 C.F.R. §§ 4.2, 4.6. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several Diagnostic Codes; 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); 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any other factors. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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). VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, in a February 2000 rating decision, the RO granted service connection for status-post right medial meniscectomy with residual pain and assigned a 10 percent disability evaluation effective on August 6, 1998. The service-connected right knee degenerative joint disease is currently rated under Diagnostic Code 5010-5260. 38 C.F.R. § 4.71a. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, 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 (limitation of flexion of the leg) and 5261 (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 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 evaluation is warranted if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Evaluations of the knee are not limited to limitation of motion under the Rating Schedule. Under Diagnostic Code 5257, other impairment of the knee, a 10 percent disability rating requires slight recurrent subluxation or lateral instability. A 20 percent disability rating requires moderate recurrent subluxation or lateral instability. A 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. As noted, in a February 2000 rating decision, the RO granted service connection for a right knee disability, status-post right medial meniscectomy with residual pain, and assigned a 10 percent disability evaluation effective on August 6, 1998. In September 2005, the Veteran is shown to have submitted an informal claim for an increased evaluation for his service-connected right knee disability. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. The analysis is undertaken with the understanding that different ratings may be assigned for different time periods in this appeal. In February 2005 correspondence, the Veteran's private family care provider reported that he treated the Veteran for chronic problems, including severe right knee pain. During a January 2006 VA examination, the Veteran reported having chronic pain and stiffness in his right knee following an in-service surgical repair of a torn meniscus. He noted that the pain and stiffness had progressively worsened over time. He related that he used to be avid runner, but was no longer able to run or jog due to his knee condition. He reported using a cane episodically to climb the stairs. He denied losing any time from work at the Social Security Administration in the past year due to his right knee. He reported having daily, chronic pain exacerbated by prolonged standing, walking, or sitting. He occasionally wrapped the knee in an Ace bandage, but did not use other supportive or locking brace devices. The Veteran noted that he took a variety of over-the-counter anti-inflammatories that provided mild relief of his discomfort. He used Percocet during severe flare-ups of pain and to treat other orthopedic conditions. The Veteran denied any giving way of the knee that resulted in falls, but complained of weakness in the right knee and feeling that there was some lateral instability. He related that he was able to perform activities of daily living without limitation. He added that he had difficulty keeping up with his children, partly due to his right knee and other orthopedic conditions. The examiner noted that the Veteran had an antalgic gait and favored the left leg. An examination of the right knee showed well-healed scars from the previous surgical intervention for a torn meniscus. There was some mild discomfort with palpation of the knee, both laterally and medially. There was no effusion or erythema. The range of motion testing revealed extension to 0 degrees and flexion to 135 degrees. There was marked crepitus and grinding through flexion and extension. Repetitive motion of the right knee did not seem to further increase pain or cause further measurable loss of motion. The Drawer, Lachman's, and McMurray's testing were negative, and there was no evidence of instability. An x-ray study of the right knee showed suspected moderately severe degenerative disease in the right medial meniscus. The diagnosis was that of degenerative joint disease of the right knee. The examiner noted that fatigability and incoordination were not particular features of the condition. She added that the Veteran's flare-ups were not an apparent feature, other than to state that the pain waxed and waned; however, the pain seemed to be more chronic in nature. In a February 2006 private treatment note, the Veteran's primary care provider noted that he had chronic, severe right knee pain. The physician reported that the he had "generalized global knee pain" since the time of his initial injury during service that had increased in frequency over the years "with progressive pain in the previous year to the point of persistent pain in the right knee." The physician stated that the persistent pain was "generally of a mild nature but [could] be moderate with severe exacerbations." The Veteran noted pain in ascending or descending graded surfaces and stairs, and was unable to run or jump. He also reported having instability in his knee with most activities. The physician noted that the Veteran had crepitation with both varus and valgus strain throughout flexion and extension of the right knee joint. There was medial joint line tenderness to palpation and mild effusion consistent with an internal right knee injury specific to either a meniscus or cartilaginous injury. During an August 2007 VA examination, the Veteran reported having increasing pain and instability in his right knee. He denied the use of a cane on a regular basis for instability. He complained that he was not parking in a handicapped spot at work and had to walk several feet to get to work. He was not taking any anti-inflammatory medication on a regular basis, but took naproxen occasionally for his knee pain. The examiner noted that most of the medication the Veteran was taking was for his back and that he did not take any specific medication for his knee. The examiner noted that the Veteran was ambulatory. He presented to the examination with a cane. The examiner noted that the Veteran was using the cane, but did not appear to need it all the time. When he walked with the cane, he walked without a limp. He was not wearing a brace, and there was no evidence of muscle atrophy. He was able to walk on his heel and his toe, but was unable to squat down due to his right knee pain. An examination of the knee showed a well-healed scar over the medial aspect of the right knee. There was no evidence of effusion or loss in valgus and varus stress. Peer, drawer, and Lachman's tests were negative. The examiner noted that other than a mild grinding sensation, there was no sign of any instability. Range of motion testing revealed that flexion was to 130 degrees and extension was to 0 degrees. Repetitive motion did not cause any significant loss of range of motion. An x-ray study of the right knee showed degenerative changes most marked in the medial joint space with no significant interval change since the January 2006 VA examination x-rays. The examiner noted that the Veteran had some limitation, especially when ascending or descending stairs and when rising from a seated position. He complained of some adverse effects on imperative movements, such as increasing pain ascending or descending stairs, but there was no increased limitation with range of motion after performing the movements. He also did not require the use of his cane while walking from his car to his place of work. He was able to perform the majority of his routine occupational duties as a clerk at the Social Security Administration without limitation. He reported that some activities like prolonged walking did cause pain to some degree, but denied any significant loss of motion or loss of function in spite of this. His right knee pain did not affect his work, nor did he take any time off for the pain other than to visit his doctor for regular medical examinations. He was able to perform activities of daily living without any significant complaints of limitations. In an August 2007 statement, the Veteran related that his knee pain had worsened over the past two years. He reported that he "moved from a slight disability to a moderate-level disability, with severe exacerbations at times." He stated that he guarded his knee and found that he was dragging himself upstairs using handrails and, occasionally, a cane. He was no longer able to jog, run, jump, or "be very active" with his children. He avoided walking down his driveway due to the incline and taking out the trashcans was a "major project" that caused him to be careful about how he moved. The Veteran reported that the August 2007 VA examiner incorrectly reported that the Veteran did not take any anti-inflammatory medications for his knee. He stated that he used pain medications, including Percocet and muscle relaxants, and over-the-counter medications, such as Naproxen, Aleve, ibuprofen, and acetaminophen or Tylenol. He also stated that the VA examination did not represent an accurate picture of the impact that his right knee had on his daily life. He noted that he experienced weakened movement, incoordination, guarding, pain on movement, and excess fatigability. A September 2007 private magnetic resonance imaging (MRI) study of the right knee showed degeneration and a suspected degenerative-type tear of the meniscal remnant involving the medial meniscus; extensive full-thickness cartilage loss in the medial femoral condyle, and milder degenerative change in the medial tibial plateau; a chronic tear of the anterior cruciate ligament (ACL); and a small knee joint effusion. During a January 2008 VA orthopedic surgery consultation, the Veteran complained of swelling and pain, particularly with weight-bearing, involving his right knee. He denied any locking symptoms, but had occasional giving way. An examination of the knee showed a well-healed surgical incision without signs of erythema or edema. There was a mild amount of effusion. There was negative patellar grind. There was tenderness to palpation along the joint line. The knee showed laxity in anterior drawer testing and Lachman testing. There was pivot glide and stability to varus/valgus stresses. There was discomfort with Apley and McMurray maneuvers. The physician's impression was that of an ACL rupture with focal medial femoral condyle articular cartilage lesion and degenerative changes of the meniscus. He noted that the Veteran should follow up with a sports surgeon to discuss treatment options, including ACL reconstruction with microfracture of the medial femoral condyle and partial meniscectomy. In an August 2008 private treatment note and a September 2008 VA treatment note, the Veteran reported slipping and falling while making coffee in August 2008, reinjuring his right knee and his back. He was prescribed Percocet and physical therapy for his complaints of back pain. In an October 2008 VA treatment note, the Veteran reported having various orthopedic complaints and chronic pain, including in his right knee. Further evaluation and possible referrals were discussed for pain management, physical therapy, and a knee brace. In August 2009 correspondence, a VA physical medicine and rehabilitation physician requested that the Veteran's employer provide him with handicapped parking privileges to "reduce the distance that he needs to walk from his parking space to his duty station." In a January 2010 statement, the Veteran's wife reported that his physical condition was worsening. She reported that he was "constantly complaining" of pain in his knees, back and neck. She related that he was very limited in his ability to participate in normal family activities and was unable to stand for any significant period of time. He performed very limited household chores. During a March 2010 VA examination, the Veteran reported that he had intermittent pain and swelling in his right knee exacerbated by activity and alleviated with rest. He indicated that he was able to perform his job as a claims technician for the Social Security Administration. The examiner noted that there was no evidence of heat, redness, instability or inflammation on examination of the knee. The Veteran reported having moderately severe flare-ups of pain daily. The examiner stated that there was no evidence of any additional limitation of motion or functional impairment during flare-ups. The examiner noted that the Veteran did not use of need to use an assistive device, such as a cane, crutch or walker. He ambulated with a normal gait. The examiner noted that the Veteran did not use a brace and was not unsteady. He reported that there were no functional limitations on weight bearing, standing or walking and that the Veteran was observed walking 100 feet without difficulty. There was no history of frequent falling. An examination of the right knee showed a well-healed surgical incision along the medial aspect. There was mild diffuse swelling and tenderness, but no evidence of fluid, heat or erythema. There was moderate crepitus on flexion and extension. There was no subluxation, contracture, laxity or instability. Range of motion showed that extension was performed to 0 degrees and flexion was performed to 130 degrees. The Veteran rose and stood normally. His gait was normal. The examiner noted that the Veteran refused to walk on his heels or toes and to hop or squat. An x-ray study of the right knee showed degenerative changes. During a December 2010 VA examination, the Veteran complained of having constant right knee pain, giving way, locking and crepitus. He reported having associated stiffness and increased pain during cold and rainy weather. He denied any episodes of dislocations or subluxations. There were no signs of inflammation like heat, redness or drainage. He reported taking Tramadol for pain and denied a history of incapacitating episodes in the past 12 months that required a visit to the Emergency Room. He used a cane and a right knee support without any hinged joints. The examiner noted that there were no constitutional symptoms of inflammatory arthritis. He was able to perform his usual occupation as a claims examiner for the Social Security Administration and activities of daily living. There was functional limitation on standing and walking. His walking was limited to 5 to 10 minutes and standing for less than 5 minutes. The examiner noted that the Veteran walked with a right antalgic gait. Active range of motion of the right knee showed that flexion was performed to 127 degrees and extension was performed to 0 degrees. There was no ankylosis of the right knee and there were no constitutional signs of inflammatory arthritis. There was pain during active range of motion testing. There was additional functional loss of 5 degrees of flexion due to pain, weakness and lack of endurance after repetitive use. The major impact was due to pain. There was no edema or effusion, but there was retropatellar crepitus and tenderness along the medial patellar facet and medial joint line. The McMurray, Lachman, and drawer tests were negative. There was no instability. The diagnoses were those of right knee torn medial meniscus and right knee degenerative joint disease. In an April 2011 statement, the Veteran reported that he did not "refuse" to walk on his heels or toes, hop or squat as the March 2010 VA examiner noted in the examination report. Rather, the Veteran related that he was unable to do those activities without incurring pain. He stated that the examiner told him not perform the activities if they were painful. Additionally, he noted that the January 2008 VA orthopedic surgery consultation report showed findings of lateral instability because his right knee showed laxity during anterior drawer testing, Lachman testing, and pivot glide. In a May 2012 statement, the Veteran reported that a VA physician told him that no treatment would be very helpful for his right knee pain, except knee reconstruction or replacement surgery. He also asserted that his right knee symptoms warranted an increased evaluation. He stated that "[e]ven though [he had] previously had no real range of motion limitation, [he had] had several tests that showed weakness and pain in [his] knee." During a June 2012 VA examination, the Veteran reported increased right knee pain. He rated his current knee pain as 3 out of 10 in severity. He had constant swelling of his right knee and occasional locking that lasted one to two seconds and occurred three to four times per month, and instability. He denied actual falls due to his knee giving way, but indicated that he had almost fallen several times due to the sensation of his knee giving way. He did not have surgery to repair his ACL. He acknowledged flare-ups of pain that impacted the function of his right knee and/or his lower leg. He reported having flare-ups after walking on inclines, prolonged sitting, standing, ascending and descending stairs, and running. Additionally, he indicated that he felt instability with running after one to two steps. He rated his pain as eight to nine out of ten during flare-ups with a duration of two to three hours. He treated his pain with limited activity, rest, Tramadol, ibuprofen, ice, and elevation. The range of motion testing showed right knee flexion was performed to 100 degrees with pain beginning at 100 degrees, and extension to 30 degrees with pain at 30 degrees. There was no additional limitation in range of motion of the right knee after repetitive range of motion testing. He had functional loss and/or functional impairment of the knee after repetitive use showing less movement than normal, pain on movement, and disturbance of locomotion. He had tenderness or pain to palpation at the joint line or soft tissue in the right knee. Muscle strength testing of the right knee showed normal strength with flexion and extension. Joint stability tests showed 1+ (0 to 5 millimeters) anterior instability (Lachman test), normal posterior stability (posterior drawer test), and normal medial-lateral stability. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted the Veteran regularly used a cane to ambulate and occasionally wore an Ace bandage on his right knee. The examiner noted that a September 2007 MRI of the right knee showed degenerative arthritis in the right knee. He opined that the Veteran's right knee disability impacted his ability to work. The Veteran reported that he lost time from work approximately once per month due to his right knee pain and required about one break per day due to his knee pain requiring him to step away from his desk for approximately 15 minutes. The diagnoses were those of right knee degenerative joint disease, right knee medial meniscus tear, and right knee ACL tear. Prior to June 6, 2012 For the period prior to June 6, 2012, the Veteran has been assigned a 10 percent evaluation based on findings of degenerative arthritis in the right knee. The evaluation contemplates painful or limited motion of a major joint. See 38 C.F.R. § 4.7; DeLuca, supra. As discussed, Diagnostic Codes 5260 and 5261 pertain to limitation of flexion of the knee and limitation of extension of the knee, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In considering the criteria of Diagnostic Code 5260, there is no evidence that the Veteran demonstrated a functional loss due to pain with flexion restricted to 60 degrees or less prior to June 6, 2012. Although he had some limitation of motion on VA examination in January 2006 (flexion to 135 degrees), August 2007 (flexion to 130 degrees), March 2010 (flexion to 130 degrees), and December 2010 (flexion to 127 degrees), the limitation of flexion fell short of that required for a 10 percent disability rating under Diagnostic Code 5260. During the December 2010 VA examination, the Veteran had an additional loss of 5 degrees of flexion due to pain, weakness and lack of endurance following repetitive motion. Thus, even when the Veteran's greatest restriction of flexion is considered along with the effects of pain, weakness, and lack of endurance after repetitive motion, the evidence shows that he retains function greater than 60 degrees for flexion of the right knee. As such, the Veteran did not meet the criteria for a higher or separate evaluation under Diagnostic Code 5260. In considering the criteria of Diagnostic Code 5261, the Veteran demonstrated full extension to 0 degrees throughout the period. As noted, limitation of extension to 5 degrees warrants a noncompensable evaluation, while extension limited 10 degrees warrants a 10 percent disability rating. Id. As such, the Veteran has not been shown to have met the criteria for a higher or separate evaluation under Diagnostic Code 5261. Prior to June 6, 2012, the Veteran asserted that he had sensations of instability in his right knee. Specifically, during the January 2006 VA examination, he complained of weakness in the right knee and some lateral instability, but he denied any giving way of the knee that resulted in falls. During February 2006 private treatment, the Veteran reported that he had instability in his right knee with most activities. Likewise, during August 2007, March 2010, and December 2010 VA examinations, the Veteran reported increased instability in his right knee. The Board notes that the Veteran is competent to describe his current symptoms, such as instability of the knee. Lay persons are competent to provide testimony as to observable symptoms and manifestations of a disorder. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In an April 2011 statement, the Veteran contended that the January 2008 VA orthopedic surgery consultation report showed that he had lateral instability because his right knee showed laxity during anterior drawer testing, Lachman testing, and pivot glide. A review of the January 2008 VA treatment note indicates that testing did show laxity in anterior drawer testing and Lachman testing, and the physician diagnosed an ACL rupture. Despite the Veteran's reports of instability in the right knee and the January 2008 diagnosis of an ACL rupture, The VA examiners in March 2010 and December 2010 found no evidence of instability. The March 2010 VA examiner noted that the Veteran walked without the use of an assistive device without difficulty and that there was no history of frequent falling. The December 2010 VA examiner indicated that the McMurray, Lachman, and drawer tests were negative. Additionally, the January 2006 VA examiner noted that drawer, Lachman, and McMurray testing were negative, and there was no evidence of instability. Thus, the Veteran's reports of instability are clearly outweighed by the findings of the VA examiners during the period in question. They reviewed his reported history, performed testing of the knee, and obtained x-ray studies, and all of the examiners concluded that there was no instability or subluxation. Thus, the preponderance of the evidence is against a finding of any instability or subluxation. Accordingly, a higher or separate rating is not warranted under Diagnostic Code 5257. Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. Based upon the January 2008 VA orthopedic surgeon's finding of an ACL rupture with focal medial femoral condyle articular cartilage lesion and degenerative changes of the meniscus and the December 2010 VA examiner's finding of a medial meniscus defect, the service connected disability is now reclassified to contemplate meniscus involvement. However, a separate evaluation is not warranted for the meniscus involvement. Clearly, there have been complaints of locking. Moreover, the Board finds the reports of instability are not credible and the reports of locking are inconsistent with the examination findings. Additionally, there is no evidence of effusion. The Board acknowledges that the Veteran has pain; however, pain is contemplated by evaluation under Diagnostic Code 5260 and 38 C.F.R. § 4.59. In essence, a separate evaluation is not warranted under Diagnostic Codes 5258 or 5259. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are reasonably addressed by the assigned 10 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's right knee is contemplated in the assigned 10 percent disability evaluation. The Veteran's complaints, when viewed in conjunction with the medical evidence, do not establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation for this time period. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for a higher or separate rating for the service-connected right knee disability prior to June 6, 2012. In sum, the Board finds that the weight of the credible evidence demonstrates that the service-connected right knee disability supports the criteria of a disability rating no greater than 10 percent for some limited or painful motion of a major joint prior to June 6, 2012. Beginning June 6, 2012 For the period beginning June 6, 2012, the Veteran has been assigned a 40 percent evaluation based on findings of limited extension and degenerative arthritis in the right knee. The evaluation contemplates painful or limited motion of a major joint. See 38 C.F.R. § 4.7; DeLuca, supra. It is also consistent with limitation of extension to 30 degrees. In order to assign a higher rating of 50 percent, the Veteran must have the functional equivalent of limitation of extension to 45 degrees. See 38 C.F.R. § 4.7; DeLuca, supra. In addition, separate evaluations may be assigned for instability or subluxation, or compensable limitation of extension. In considering the foregoing criteria of Diagnostic Code 5261, the Veteran demonstrated extension to 30 degrees on examination in June 2012... As noted, limitation of extension to 45 degrees warrants a 50 percent disability rating. The evidence shows that he retained greater remaining function than 45 degrees of extension of the right knee. In considering the criteria of Diagnostic Code 5260, there is no evidence that the Veteran demonstrated a functional loss due to pain with flexion restricted to 60 degrees or less beginning June 6, 2012. As noted, limitation of flexion to 60 degrees warrants a 10 percent disability rating. Although he has some limitation of motion on VA examination in June 2012 (flexion to 100 degrees), the limitation falls short of that required for a 10 percent disability rating under Diagnostic Code 5260. During the June 2012 VA examination, the Veteran had no additional loss of extension due to pain following repetitive motion. As such, the Veteran has not been shown to have met the criteria for a separate evaluation under Diagnostic Code 5260. Diagnostic Code 5257 provides for a 10 percent evaluation for slight recurrent subluxation or lateral instability. During the June 2012 VA examination, the examiner noted Lachman joint stability testing showed 1+ (0 to 5 millimeters) anterior instability; however, testing also showed normal posterior stability and normal medial-lateral stability. To that extent, a 10 percent evaluation based on slight instability is the most appropriate evaluation to assign for these manifestations. Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage. The June 2012 VA examiner diagnosed a right knee medial meniscus tear and an ACL tear. Beginning on June 6, 2012, the Veteran is not shown to have the removal of semilunar cartilage with frequent episodes of locking, pain, and effusion to the joint. The Veteran complained of occasional locking that lasted one to two seconds and occurred three to four times per month. The Board also acknowledges that the Veteran has pain, however, pain is contemplated by evaluation under Diagnostic Code 5260 and 38 C.F.R. § 4.59. In essence, a separate evaluation is not warranted under Diagnostic Codes 5258 or 5259. The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher, for the entire appeal period. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's right knee is contemplated in the assigned 40 percent disability evaluation. The Veteran's complaints, when viewed in conjunction with the medical evidence, do not establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation for this time period. However, the Board finds that a separate 10 percent evaluation is warranted beginning on June 6, 2012 as the service-connected right knee disability picture is shown to more closely resemble that of slight instability under Diagnostic Code 5257. Extraschedular Considerations In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the right knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show an exceptional disability picture so that the available schedular evaluation for the service-connected disability is rendered inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaint of pain is fully considered in the assignment of the 10 percent disability rating prior to June 6, 2012, and the 40 percent evaluation for pain and limitation of extension and a separate 10 percent evaluation for instability beginning on June 6, 2012. Based on the foregoing, the Board finds that referral for an extraschedular evaluation for the service-connected right knee disability under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The appeal as to the claim for a TDIU rating is dismissed. An increased evaluation in excess of 10 percent for the service-connected degenerative joint disease of the right knee prior to June 6, 2012, is denied. An increased evaluation in excess of 40 percent for the service-connected degenerative joint disease of the right knee beginning on June 6, 2012, is denied. A separate evaluation of 10 percent for the service-connected right knee disability based on instability beginning on June 6, 2012, is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs