Citation Nr: 1316769 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-15 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee for the period prior to April 26, 2011. 2. Entitlement to an initial rating in excess of 30 percent for degenerative arthritis of the right knee for the period beginning on June 1, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative arthritis of the right knee, and awarded a 10 percent rating, effective October 9, 2008; and denied an increased rating for hidradenitis suppurativa with scrotal abscess and acne vulgaris and service connection for hepatitis B. In December 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A hearing transcript has been associated with the claims file. Subsequent to such hearing, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In a July 2011 rating decision, the RO assigned a temporary total rating of 100 percent, effective April 26, 2011, based on surgical or other treatment necessitating convalescence due to a total right knee replacement. Thereafter, a 100 percent rating was assigned, effective June 1, 2011, while a 30 percent rating was assigned, effective June 1, 2012, under Diagnostic Code 5055 for a knee replacement. In a December 2011 decision, the Board denied the Veteran's claim for an increased initial rating for degenerative arthritis of the right knee prior to April 26, 2011. The Board also noted that, at the time of such decision, the Veteran was in receipt of a 100 percent rating for his right knee disability and June 1, 2012, was in the future and, thus the propriety of the 30 percent rating assigned as of such date was not before the Board. However, as June 1, 2012, has since passed and the Veteran's 30 percent rating is in effect, the Board has also taken jurisdiction over the propriety of such rating as the Veteran appealed with respect to the propriety of the initial rating, which includes the 30 percent rating. Therefore, both issues are noted on the title page of this decision. The Veteran subsequently appealed this denial to the Court of Appeals for Veterans Claims (Court). In a September 2012 Joint Motion for Remand (JMR) and Order, the Court vacated the Board's December 2011 decision as to the claim for an increased rating for degenerative arthritis of the right knee prior to April 26, 2011, and remanded the claim to the Board for further adjudication. The Board notes that it had also remanded, to the Appeals Management Center (AMC), the claims for an increased rating for hidradenitis suppurativa with a scrotal abscess and acne vulgaris as well as a claim for service connection for hepatitis B in December 2011. These claims have not been recertified to the Board and it appears that all ordered development has not been completed by the AMC. These claims are therefore not currently before the Board for adjudication. The Board observes that VA treatment records dated through February 2010 have been considered by the AOJ in the July 2010 supplemental statement of the case (SSOC), the most recent SSOC issued. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from March 2010 to January 2012 that have not been considered by the AOJ. However, the Board finds that such records are not relevant to the claim decided herein as they do not address findings referable to the Veteran's right knee. Additionally, while the AOJ noted that VA treatment records beginning in March 2006, Virtual VA reveals the presence of May 2006, October 2007, and November 2007 VA treatment records referable to the Veteran's right knee that was first associated with the record in March 2013. However, as these records pre-date the award of service connection for the Veteran's right knee disability, they are not relevant to the claim decided herein. The issue of entitlement to initial rating in excess of 30 percent for degenerative arthritis of the right knee for the period beginning on June 1, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, D.C. FINDINGS OF FACT 1. For the period prior to April 26, 2011, the Veteran's degenerative arthritis of the right knee was manifested by objective evidence of arthritis with painful motion and extension limited to no more than -5 degrees and flexion limited to no more than 115 degrees, even in consideration of repetitive motion and flare-ups. 2. For the period prior to April 26, 2011, the Veteran's degenerative arthritis of the right knee resulted in dislocated semilunar cartilage with subjective symptoms of stiffness, clicking, grinding, giving way, and locking with objective evidence of crepitus, osteophytes, inflammation, and effusion. 3. For the period prior to April 26, 2011, the Veteran's degenerative arthritis of the right knee did not result in recurrent subluxation or lateral instability, removal of the semilunar cartilage, ankylosis, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative arthritis of the right knee for the period prior to April 26, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260 (2011). 2. The criteria for an initial separate 20 percent rating for dislocated semilunar cartilage of the right knee for the period prior to April 26, 2011, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his right knee disorder from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, supra at 490. In this case, the Veteran's claim for service connection for his right knee disorder was granted and an initial rating was assigned in the June 2009 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the Board observes that he has identified private treatment records dated from April 26, 2011, the date of his total knee replacement surgery, to July 2011, which are not of record. However, as the Board is adjudicating the period prior to April 26, 2011 herein, such records are not relevant to the current claim. As such, a remand of the instant claim to obtain such records is not necessary. The Board also notes that in March 1997, the Veteran indicated that he was in receipt of Social Security Administration (SSA) disability benefits for manic depression. In October 1997, in response to VA's inquiry, SSA indicated that they had no records for the Veteran and that he was not a SSA disability recipient. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, as long as a reasonable possibility exists that the records are relevant to the Veteran's claim, VA is required to assist the Veteran in obtaining the identified records. As the SSA records are irrelevant to the claim decided herein, the Board finds that no additional action is necessary in this regard. The Veteran was also afforded a VA examination in May 2009 in conjunction with the claim on appeal. Neither the Veteran nor his representative has alleged that such is inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected right knee disorder for the period prior to April 26, 2011 as it includes an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Additionally, in December 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned VLJ. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the December 2010 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. The Veteran was asked to describe this knee symptoms and to identify where he received treatment. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Moreover, while the hearing discussion revealed additional records, the Veteran was advised to submit such records, which he subsequently did. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which 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). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. For the period prior to April 26, 2011, the Board finds that the Veteran's degenerative arthritis of the right knee was manifested by objective evidence of arthritis with painful motion and extension limited to no more than -5 degrees and flexion limited to no more than 115 degrees, even in consideration of repetitive motion and flare-ups. Additionally, such resulted in dislocated semilunar cartilage with subjective symptoms of stiffness, clicking, grinding, giving way, and locking with objective evidence of crepitus, osteophytes, inflammation, and effusion. However, the Veteran's right knee disability did not result in recurrent subluxation or lateral instability, removal of the semilunar cartilage, ankylosis, impairment of the tibia or fibula, or genu recurvatum. In this regard, the Veteran underwent a VA orthopedic examination in May 2009. He had X-rays showing moderately severe degenerative arthritis of the right knee, and he was previously scheduled for total knee replacement in 2001, but it was cancelled as he was determined to be too young at the time. He was told again in 2007 that he needed arthroplasty but to try to put up with the pain for a while until he got older. His weight was said to play a role in his condition as he was 6 feet, 6 inches tall and weighed 370 pounds. He was able to work as a security guard. From a functional standpoint, he was unable to do prolonged walking and could not run. He was able to squat, some. Stairs were difficult for him. As far as daily activities, he was no longer able to do yard work anymore and had to hire someone to do it. Repetitive use of the knee such as physical therapy was of no benefit. He had used various nonsteroidal anti-inflammatories to control his pain. He also wore a brace on the right knee. Examination of the right knee showed it was mildly swollen. There was tenderness over the medial joint line. The examiner did not detect any instability. There was crepitus present. Patellar grind test was positive. He was able to extend his right knee -5 degrees and flexion was accomplished to 115 degrees. With three repetitions, there was no additional loss in range of motion due to pain, fatigue, weakness, or incoordination. The diagnosis was degenerative arthritis of the right knee. It was noted that the Veteran did not use a cane. During flare-ups, he had increased pain but the examiner could not estimate any additional loss in range of motion without conjecture. The Veteran testified at a personal hearing before the undersigned in December 2010. At such time, he indicated that he was receiving current treatment for his right knee arthritis and that he experienced symptoms of stiffness and giving way. The Veteran related that he had a knee brace for the knee, but was unable to wear it with clothes on. He indicated that he received steroid injections and Ibuprofen for pain. The Veteran further testified that he was unable to stand for long periods or walk for long distances. He also stated that when he sat for a long period, his knee would lock. In December 2010, the Veteran was seen privately by J.O.L., M.D. He related that he was ready to proceed with total knee replacement surgery. Physical examination of the right knee appeared arthritic with palpable osteophytes and inflammation. There was normal alignment. Range of motion was decreased from normal with crepitus throughout the range of motion causing pain. The knee was stable to varus/valgus stress and anterior/posterior drawer. There were no scars of the knee. There was a 1 to 2+ effusion of the knee joint associated with inflammation and tenderness generalized about the knee. X-rays of the right knee showed severe degenerative arthritis in all compartments. Discussion was had with the Veteran and he elected to proceed with total knee replacement surgery. He also had a knee injection on the day of the examination and received immediate and significant relief of pain in the joint with active and passive motion. A March 2011 private treatment record reflects complaints of constant pain, stiffness, clicking, and grinding. Physical examination revealed tenderness at the medial joint line. Range of motion was full with crepitus. There was a 1+ effusion with positive patella compression. Patella mobility was normal. On April 26, 2011, the Veteran underwent right total knee arthroplasty at the Arkansas Surgical Hospital. The Veteran's right knee disorder is rated under Diagnostic Code 5003 pertinent to degenerative arthritis. Such provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 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 authorized 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As the Veteran's degenerative arthritis of the right knee has been evaluated based on limitation of flexion under Diagnostic Code 5260, the Board has first considered whether he is entitled to an initial rating in excess of 10 percent under such criteria, which provides for a 20 percent rating where flexion is limited to 30 degrees. However, as the evidence demonstrates that the Veteran's flexion is limited to, at worst, 115 degrees during the appeal period, even in consideration of pain, the Board finds that he is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260. In this regard, the Board has considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination. However, as demonstrated at the May 2009 VA examination, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion. Additionally, in March 2011, the Veteran had full range of motion with crepitus. In April 2011, the Veteran's private physician noted that his range of motion was decreased from normal and he had pain throughout it, but did not provide specific measurements of flexion. However, the VA examiner specifically noted that, with three repetitions, there was no additional loss in range of motion due to pain, fatigue, weakness, or incoordination. The Board further notes that the examiner indicated that, during flare-ups, the Veteran had an increase in pain; however, he could not estimate any additional loss in range of motion without conjecture. Therefore, Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 30 degrees. See DeLuca, supra; Mitchell, supra. Therefore, the Veteran is not entitled to an initial rating in excess of 10 percent under Diagnostic Code 5260. Pursuant to VAOPGCPREC 9-04, the Board has considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5261 pertinent to limitation of extension of the leg. As indicated previously, Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. However, the evidence fails to show that the Veteran's extension is limited to more than -5 degrees at any point during the appeal period, even in consideration of additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination as a result of repetitive motion and/or flare-ups. In this regard, the Veteran had extension to -5 degrees at the May 2009 VA examination. However, as demonstrated at the May 2009 VA examination, the Veteran had pain on motion, but there is no indication that such resulted in additional functional loss, to include a greater loss of extension. Additionally, in March 2011, the Veteran had full range of motion with crepitus. In April 2011, Veteran's private physician noted that his range of motion was decreased from normal and he had pain throughout it, but did not provide specific measurements of extension. However, the VA examiner specifically noted that, with three repetitions, there was no additional loss in range of motion due to pain, fatigue, weakness, or incoordination. The Board further notes that the examiner indicated that, during flare-ups, the Veteran had an increase in pain; however, he could not estimate any additional loss in range of motion without conjecture. Therefore, as the evidence fails to show limitation of extension to a compensable degree, even in contemplation of functional loss caused by symptoms such as pain, swelling, weakness, fatigue, or incoordination as a result of repetitive motion and/or flare-ups, the Board finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5261. See DeLuca, supra; Mitchell, supra. The Board has further considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5257 pertinent to recurrent subluxation or lateral instability. See VAOPGCPREC 23-97;VAOPGCPREC 9-98. However, the evidence fails to demonstrate that the Veteran's right knee disorder results in such impairment. In this regard, at the May 2009 VA examination, the examiner did not detect any instability of the knee. Moreover, in December 2010, his private physician noted that the Veteran's right knee was stable to varus/valgus stress and anterior posterior drawer. While the Board notes that the Veteran has reported locking, the objective evidence fails to demonstrate recurrent subluxation or lateral instability. Specifically, all diagnostic testing on physical examination has been negative. Therefore, while the Veteran experiences locking in the right knee, such does not result in recurrent subluxation or lateral instability. Moreover, as will be addressed below, the Veteran's subjective complaints of locking are contemplated in the separate 20 percent rating assigned under Diagnostic Code 5258. As such, to assign a separate 10 percent rating under Diagnostic Code 5257 would thus doubly compensate the Veteran for the same symptoms already considered and violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban, supra. Consequently, he is not entitled to a higher or separate rating under Diagnostic Code 5257. With regard to Diagnostic Code 5258 for dislocated semilunar cartilage, the Board notes that the September 2012 JMR determined that a meniscus tear was analogous to a dislocation as it occurred in the same anatomical localization with demonstrably the same symptomology and affected functions. The September 2012 JMR also referenced an October 1997 VA Magnetic Resonance Imaging (MRI) scan which had diagnosed the Veteran with a horizontal tear of the posterior horn of the lateral meniscus. As discussed above, the Veteran consistently reported pain in his knee and objective examination in May 2009, December 2010 and May 2011 revealed swelling or effusion. He testified during his December 2010 hearing that his knee locked up after sitting for a long period of time; he did not indicate how often these locking episodes occurred. In light of the fact that the Veteran underwent a total knee arthroplasty in April 2011, and affording the Veteran all reasonable doubt, the Board finds that an initial separate 20 percent rating for dislocated semilunar cartilage with subjective symptoms of stiffness, clicking, grinding, giving way, and locking with objective evidence of crepitus, osteophytes, inflammation, and effusion is warranted for the period prior to April 26, 2011. As such symptomatology is separate from the symptoms that support the Veteran's 10 percent rating under Diagnostic Code 5003-5260, assigning a separate rating is not tantamount to pyramiding. See Esteban, supra. The Board has considered the applicability of other potential diagnostic codes. As the evidence of record fails to demonstrate ankylosis, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5256, 5259, 5262, or 5263, respectively. The Board has also considered the Veteran's statements that his right knee arthritis is worse than reflected by the current rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his right knee disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's right knee has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right knee disability; however, the Board finds that his symptomatology has been stable throughout appeal period. Therefore, assigning staged ratings for the right knee arthritis is not warranted. Additionally, the Board has contemplated whether the Veteran's claim for an increased rating for degenerative arthritis of the right knee should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected degenerative arthritis of the right knee with the established criteria found in the rating schedule. The Board finds that the Veteran's degenerative arthritis of the right knee symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, all of the Veteran's degenerative arthritis of the right knee symptomatology is contemplated by the rating criteria, to include those symptoms which are not specifically enumerated. In this regard, the Veteran is now in receipt of two separate ratings to compensate him for various knee symptoms. In this regard, a 10 percent rating has been assigned based on the presence of arthritis with painful, limited motion, and a 20 percent rating has been assigned based on symptomatic dislocated semilunar cartilage. There are no additional symptoms of his degenerative arthritis of the right knee that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his degenerative arthritis of the right knee. In fact, he generally referenced his current employment in his April 2011 VA treatment note. Therefore, the Board finds that a TDIU is not raised by the record. For the foregoing reasons, the Board finds that an initial separate rating of 20 percent for dislocated semilunar cartilage of the right knee for the period prior to April 26, 2011, is warranted. No other higher or separate ratings are warranted for this claim. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against other higher or separate ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 10 percent for degenerative arthritis of the right knee for the period prior to April 26, 2011, is denied. An initial separate rating of 20 percent for dislocated semilunar cartilage of the right knee for the period prior to April 26, 2011, is granted, subject to applicable law and regulations governing the award of monetary benefits. REMAND With respect to the remaining issue on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A ; 38 C.F.R. § 3.159(c). Where the record does not adequately reveal the current state of claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was afforded a VA orthopedic examination in May 2009. In this case, the Board finds that an additional examination is necessary as the Veteran underwent a total right knee arthroplasty on April 26, 2011. It does not appear that the Veteran has undergone a VA orthopedic examination since this surgery. In light of this surgery, the Board finds that a remand is required in order to determine the Veteran's current level of impairment with regard to his degenerative arthritis of the right knee. Finally, treatment records from the Central Arkansas VA Medical Center (VAMC) dated from January 2012 to the present should be obtained for consideration in the Veteran's appeal. In addition, the Veteran indicated that he has received treatment for his right knee at Martin Knee and Sports Medicine since April 2011. As these records have been adequately identified, they should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Central Arkansas VAMC dated from January 2012 to the present. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 2. Contact the Veteran and request that he complete and submit an updated VA Form 4142, Authorization and Consent to Release Information to the VA, in favor of Martin Knee and Sports Medicine. Inform him that he may submit his private treatment records if he so chooses. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 3. After completing the above development, and following the receipt of any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected degenerative arthritis of the right knee. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should note the ranges of motion for right knee. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. In addition, the examiner should note whether the Veteran has any instability or recurrent subluxation of the knee. The examiner should specifically note whether the Veteran has chronic residuals of his knee replacement that includes severe painful motion or weakness. The examiner should also address the impact the Veteran's right knee disability has on his employability, to include whether such renders him unemployable. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the July 2010 SSOC. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs