Citation Nr: 1316981 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 02-06 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease (DJD), i.e., arthritis of the right knee, status post meniscectomy. 2. Entitlement to an initial rating higher than 10 percent for DJD of the left knee, status post repair, with instability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the military from July 1974 to November 1976 and from June 1988 to May 1999. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO granted service connection for the Veteran's bilateral (i.e., right and left) knee and cervical spine disorders and assigned initial 10 percent ratings for each retroactively effective from June 1, 1999. The RO also granted service connection for a laceration and cellulitis of the left hypothenar area, bilateral bunionectomies, and left second toe disability, and respectively assigned 0 percent (i.e., noncompensable) ratings also retroactively effective from June 1, 1999. The Veteran appealed for higher initial ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating to compensate him for times since the effective date of his award when the disability may have been more severe than at others). In February 2004, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), for further development and consideration, including ensuring all required Veterans Claims Assistance Act (VCAA) notice had been provided and having the Veteran undergo VA compensation examinations reassessing the severity of his disabilities. The Board then determined the claims required still further development, so in December 2008 again remanded them to the RO via the AMC, except that the Board went ahead and decided (denied) two of the claims that were on appeal, for an initial compensable rating for the bilateral hearing loss and for service connection for a right middle finger disorder. The additional development of the remaining claims included confirming the Veteran's then current address, providing additional VCAA notice, and having him undergo further VA compensation examinations. As a result of the additional VA examinations provided, the AMC's division at the RO in Huntington, West Virginia, issued a July 2009 decision increasing the ratings for the right and left bunionectomies from 0 to 10 percent retroactively effective as of June 1, 1999, so back to the day following the Veteran's discharge from service. He continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible ratings unless he expressly indicates otherwise). Thereafter, a May 2012 Board decision decided all outstanding claims, granting in part increased ratings to 20 percent for the right and left bunionectomies and to 10 percent for the left toe condition, but instead denying increased ratings for the right and left knee disorders, DJD of the cervical spine, and resolved laceration and cellulitis of the left hypothenar area. The Veteran appealed therefrom to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In January 2013, VA's Office of General Counsel and the Veteran's attorney filed a Joint Motion for Partial Remand asking the Court to partially vacate the Board's decision only with regards to the denial of higher ratings for right and left knee disabilities. The Court granted that Joint Motion in an Order issued later that same month and returned the claims file to the Board for further proceedings consistent with directives specified. In April 2013, as support for these remaining claims, the Veteran provided additional evidence comprised of a personal statement, prior VA examination reports, and copies of service treatment records (STRs). Of the evidence that has not already been considered, he waived his right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ), preferring instead to have the Board do so in the first instance. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. The Veteran's right knee disability, which includes X-ray confirmation of DJD, i.e., arthritis, at worst, has flexion limited to 120 degrees out of the normal 140 degrees, and no limitation of extension, which is to 0 degrees; he only experiences pain during the last 10 degrees of his flexion. 2. His left knee disability, which also includes X-ray confirmation of arthritis, at worse, has flexion limited to 130 degrees out of the normal 140 degrees, and no limitation of extension, which is to 0 degrees; there has been just a one-time finding of a 15-mm anterior drawer sign, but negative Lachman's and McMurray's tests. 3. There is a history of surgeries to repair cartilaginous damage in both knees, with consequent bilateral knee crepitation, grinding and snapping, and other symptoms not directly involving either limitation of motion or instability. CONCLUSIONS OF LAW 1. The criteria are not met for an initial disability rating higher than 10 percent for the DJD of the right knee, status post meniscectomy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5260 and 5261 (2012). 2. The criteria also are not met for an initial disability rating higher than 10 percent for the DJD of the left knee, status post repair, with instability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260 and 5261 (2012). 3. However, resolving all reasonable doubt in his favor, the criteria are met to assign a separate 10 percent rating for removal of the right knee cartilage, symptomatic, effective June 1, 1999. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.71, 4.71a, Diagnostic Code 5259 (2012). 4. The criteria likewise are met to assign a separate 10 percent rating for removal of the left knee cartilage, symptomatic, effective June 1, 1999. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.71, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR § 3.159(b)(1) (2012). But specifically in regards to these claims on appeal for higher initial ratings for the service-connected right and left knee disabilities, when, as here, the claims arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection for these disabilities, and the claims since have been granted and he has appealed a "downstream" issue such as the initial disability ratings assigned, the underlying claims have been more than substantiated, they have been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claims. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin, etc., instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claims, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a Statement of the Case (SOC) if the disagreement is not resolved. And the RO provided him this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning higher initial ratings for these disabilities. The RO furthermore has taken appropriate steps to comply with the duty to assist the Veteran with these increased-rating claims by obtaining records of his VA outpatient treatment and arranging for him to undergo VA Compensation and Pension examinations assessing and reassessing the severity of these disabilities. See 38 C.F.R. §4.1 (for purpose of application of the Rating Schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of these claims, he has provided additional copies of medical records, several personal statements, and copies of STRs. He has not requested a hearing. There is no indication of any other evidence or information relevant to these claims that has not been obtained. The record as it stands includes sufficient competent evidence to decide the claims. Thus, no further assistance with these claims is required. In sum, the record reflects that the facts pertinent to these claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d. 1369 (Fed. Cir. 2004). Accordingly, the Board is proceeding with the adjudication of these claims. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule) that is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When, as here, the Veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a "staged" rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating. See Fenderson, supra, at 125-26. The Court since has extended this practice, however, even to claims that do not involve initial ratings, but also established ratings, so even in the more traditional increased-rating context. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. 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. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other Diagnostic Codes assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases involving arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Consider also that, when the Veteran already has the highest possible rating based on limitation of motion, it is not necessary to consider the factors discussed in DeLuca, including the affect pain has on his range of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Turning now to the facts and circumstances of this particular Veteran. His right knee DJD is rated under hyphenated Diagnostic Codes 5010-5260, which concern traumatic arthritis and limitation of flexion of the leg, respectively. 38 C.F.R. § 4.71a. In the assignment of Diagnostic Code numbers, hyphenated Diagnostic Codes may be used. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last. See 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that traumatic arthritis, as demonstrated by numerous X-rays, under DC 5010, is the service-connected disorder, and that limitation of knee flexion, under Diagnostic Code 5260, is a residual condition. The Veteran's left knee DJD is rated under hyphenated Diagnostic Codes 5010-5257, which concern traumatic arthritis and "other" impairment of the knee (including recurrent subluxation or lateral instability), respectively. 38 C.F.R. §§ 4.71a, 4.27. Under Diagnostic Code 5010, post-traumatic arthritis is to be rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic/osteoarthritis) in turn will be rated on the basis of limitation of motion of the specific joint or joints involved. When, however, limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion but X-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Id. Diagnostic Code 5261 provides that limitation of extension will be assigned a noncompensable rating when it is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Id. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, "other" knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight consequent disability, a 20 percent rating for moderate consequent disability, and a maximum 30 percent evaluation for severe consequent disability. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes, including this one, are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 VA's Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). VAOPGCPREC 23-97 held that a claimant also may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must at least meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). VA's General Counsel further explained however that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Also potentially applicable is Diagnostic Code 5258, which provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. Diagnostic Code 5259 provides for the assignment of a single 10 percent rating for removal of the semilunar cartilage, symptomatic. The January 2013 Joint Motion for Partial Remand specifically directed that the Board reconsider these diagnostic codes pertaining to damage to the cartilage of the knee joint, in light of medical history dating back to service confirming the Veteran had undergone surgeries for both knees to repair damaged menisci. The Board accordingly considers these diagnostic codes below. Background and Analysis In the May 2001 rating decision, service connection was granted for DJD of the right knee, status post meniscectomy. A 10 percent rating was assigned, retroactively effective from June 1, 1999. Service connection was also granted for DJD of the left knee, status post repair, with instability, also with a 10 percent evaluation since June 1, 1999. The Veteran disagrees with these 10 percent evaluations for his right and left knee disabilities assigned in that rating decision. A review of the records reflects a VA compensation examination in January 2000. At the time, the Veteran complained of crepitation on motion of both knees. The knees swelled and gave away, and the Veteran reported problems with stairs, steps, and ladders as well. Range of motion of the right knee was from 0 to 130 degrees (extension to flexion) with crepitation on motion. So the Veteran had normal extension to 0 degrees and nearly normal flexion to 130 degrees (normal, as mentioned, is to 140 degrees). There was a 5-inch scar on the lateral right knee, with notable swelling present. No ligament laxity was found. There also was negative McMurray's, Lachman, and anterior drawer sign, so no objective indications of instability or subluxation. However, there was tenderness along the medial joint line and the medial patellar facet as well. Meanwhile, range of motion of the left knee was from 0 to 130 degrees (extension to flexion) with crepitation on motion. So the Veteran had normal extension to 0 degrees and nearly normal flexion to 130 degrees (normal, as mentioned, is to 140 degrees). There was crepitation on motion, but no swelling or deformity. The left knee was tender along the medial joint line. There also was about a 15-mm anterior drawer sign, though no medial or lateral collateral ligament laxity was found. X-rays were not taken of the Veteran's knees during this examination. However, a diagnosis of DJD of the knees was provided. During an April 2000 VA general examination, a scar was found on the medial side of the right knee. Neurological examination was normal, with deep tendon reflexes found to be 2+ in the patella bilaterally, and 2+ in the Achilles bilaterally. The diagnosis was, in pertinent part, DJD of both knees. Following and as a result of the Board's February 2004 remand of this claim, the Veteran was provided another VA compensation examination in November 2004. This November 2004 examination found both knees and both patella to be stable with no swelling. The right knee had 1/4 crepitance. Range of motion of the right knee was from 0 to 140 degrees, so normal. McMurray's sign and drawer sign were negative. The left knee had 2/4 crepitance. Range of motion of the left knee was from 0 to 140 degrees, so normal. McMurray's sign and drawer sign were negative. X-rays revealed mild DJD of both knees. Subsequently, the November 2004 examination was found to be inadequate and an addendum, dated in August 2005, was provided. The Veteran was not examined for the additional comments provided in August 2005. Rather, this August 2005 addendum repeated the range of motion of the right and left knees found during the November 2004 examination - 0 to 140 degrees - and noted pain on motion beginning at 130 degrees and ending at 140. However, no additional loss of motion on repetitive use was noted. There was no ankylosis, but crepitus, crepitation, grinding, and clicks or snaps were noted. Following this examination, another addendum was provided in April 2006 due to the August 2005 addendum also found to be inadequate. The Veteran was not examined in April 2006 either. Rather, the April 2006 addendum merely stated that there was an antalgic gait due to severe bilateral knee DJD and bilateral foot conditions, and that pain was present in the last 10 degrees of flexion of the knees, but that there was no fatigue, incoordination, or laxity. However, there was moderate (15 percent) limitation of the knees with flare-ups. In December 2008, the Board again remanded this claim to provide another VA compensation examination to the Veteran. As a result, he was provided another examination in March 2009. This examiner initially noted his history of a right knee meniscectomy with ligament reconstruction in the mid-1980s. He also noted that the Veteran was able to stand for about 15 to 30 minutes, and unable to walk for more than a few yards, although no assistive devices were used. Objective physical examination found a normal gait, with no other findings of abnormality except for grinding. Range of motion of the right knee was 0 to 120 degrees, with no objective evidence of pain with active motion, no additional limitation with repetitive motion, and no additional limitation after three repetitions of range of motion testing. X-rays of the right knee found mild DJD. Range of motion of the left knee was normal, from 0 to 140 degrees, with no objective evidence of pain with active motion, no additional limitation with repetitive motion, and no additional limitation after three repetitions of range of motion testing. X-rays of the left knee found mild DJD. The Veteran was noted to be moderately affected by his disability in doing chores, shopping, and exercising, and prevented from participating in sports. But there was no effect on recreation, traveling, feeding, bathing, dressing, toileting, grooming, or driving, so most activities of daily living. A. Right Knee DJD On review of the above findings, with regard to objective measurement of range of motion, the Veteran does not have sufficiently restricted flexion or extension to warrant a higher rating of 20 percent under Diagnostic Codes 5260 and 5261. The worst knee flexion found during the appeal period has been to 120 degrees for the right knee, during the March 2009 VA compensation examination. But these flexions found far exceed the requirements for the 20 percent rating under Diagnostic Code 5260, which requires flexion limited to just 30 degrees. There was no further lost range of motion due to pain, weakness, instability, fatigue, or other recognized forms of functional loss. See Deluca, supra; 38 C.F.R. §§ 4.45, 4.59. Clearly, the Veteran's flexion is not limited to the 45 degrees required for even the most minimum compensable rating of 10 percent under Diagnostic Code 5260, let alone the criteria required for the 20 percent rating. Nevertheless, as explained, the functional limitations due to pain also must be accounted for in the disability evaluation, and he is competent to report experiencing chronic pain in his knee since this is capable of even lay observation. In increased-rating claims, an appellant's lay statements alone, absent negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010) (noting that 38 U.S.C.A. § 5103(a) requires the Secretary of VA, for increased-rating claims, to notify the claimant that, to substantiate such a claim, the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that, "as a lay person, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability"). The Veteran has submitted statements reporting a worsening in the pain and a decrease in the mobility in his knees. He also reported, during the most recent VA examination in March 2009, being unable to stand more than 15-30 minutes and walk more than a few yards. However, the March 2009 and past VA examiners have found no symptoms aside from some swelling in January 2000 and crepitation more recently. No instability or neurological deficit has ever been noted. Moreover, the most recent examination in March 2009 found no pain on active motion and no additional limitation on repetitive motion. And the Veteran's right knee disability was found to have no effect on most of his activities of daily living. The finding of DJD in the right knee was considered to be mild. Clearly then, there is no basis for increasing the Veteran's right knee disability rating under Diagnostic Code 5260 because he does not have flexion of the right knee limited to 30 degrees to warrant a rating of 20 percent under this code. He also cannot receive separate ratings for his flexion and extension because he has normal (full) extension, to 0 degrees. See again VAOPGCPREC 9-2004. Moreover, the Board emphasizes that the existing VA Compensation and Pension examination history provides a sufficient basis for evaluative purposes. Whereas the last pertinent VA examination was in March 2009, approximately four years ago, the Board observes that the Veteran's right knee mobility then consisted of normal extension (which is to 0 degrees), and flexion within only 20 degrees of normal flexion (to 140 degrees). There was also no sign of functional loss that would further affect the severity of service-connected disability. Essentially, the Veteran's limitation of motion, to the extent found, was not remotely close to that which would substantiate any higher evaluation under the VA rating schedule. See again, 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Throughout the time period under review, since service connection was granted, the Veteran has consistently had at or near normal range of motion. Nor has there been any intervening showing or allegation from the Veteran of worsening of disability since 2009, specifically with regard to limitation of motion. The primary contention and focus of the Veteran in his most recent statement to the Board was that a separate evaluation should be granted for impairment of the right knee meniscus (which in fact the Board is granting below), without reference to any more pronounced limitation of mobility. Thus, the Board concludes that in all likelihood there is a sufficiently recent and informed VA examination record before it. It follows that no higher evaluation for right knee disability is warranted premised on limitation of motion. This notwithstanding, the Board likewise has taken into consideration the potential applicability of other diagnostic codes. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). The Board has given particular emphasis to the additional diagnostic criteria premised upon impairment of the semilunar cartilage, consistent with the terms of the January 2013 Joint Motion for Partial Remand, and the Veteran's own correspondence identifying what he believes is a primary component of his service-connected disability. The Board finds accordingly that a separate 10 percent evaluation is substantiated under Diagnostic Code 5259 for removal of the semilunar cartilage, symptomatic. As recounted in the Joint Motion itself, during service the Veteran had a history of surgical procedures involving the right knee meniscus -- an arthroscopic medial meniscectomy for a torn medial meniscus in January 1985; and in December 1986, an arthroscopy, partial resection of the right lateral meniscus (for a complex tear of the right lateral meniscus). Notwithstanding that these procedures were completed several years prior to the effective date of service connection for right knee disability, the fact remains that there is relevant history of cartilaginous damage and subsequent partial removal. Moreover, as Diagnostic Code 5259 requires that the condition be symptomatic post-operative, the Veteran in April 2013 correspondence provides lay testimony regarding "symptomatology of crepitation, grinding, clicking, snapping and other similar symptoms in his knees bilaterally that are not contemplated by the DCs that the Veteran is presently compensated under for limitation of motion and arthritis." The Veteran is indeed competent to present such a description of his own readily observable symptoms of service-connected disability. See Layno, supra; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (discussing competence of lay testimony to provide assertions on matters that do not require a medical background if within purview of own observation). This evidence of crepitation, patellar grinding, and snapping was never fully elicited through previous VA examination history, and thus was not before the Board when it originally decided the Veteran's claim. Nonetheless, the Board finds the lay testimony regarding the same sufficiently competent and credible, given the long-term medical history. It would further stand to reason that the Veteran has had these symptoms for a while given that the right knee procedures were completed in-service during the mid-1980s. The Board therefore assigns a separate 10 percent rating for removal of the semilunar cartilage, symptomatic, from the June 1, 1999 effective date of service connection for right knee disability. 2. Left Knee DJD Reviewing the evidence pertaining to left knee disability under the existing rating criteria applied by the RO, there is no readily ascertainable basis for an increase in rating. Here, aside from the January 2000 examination finding of a 15-mm anterior drawer sign, all other and subsequent examiners have determined there is no instability of the left knee. All diagnostic testing and evaluation for this was unremarkable. The left knee repeatedly has been found to be stable, with no laxity, and negative Lachman's and McMurray's. Thus, as there has been no evidence of recurrent subluxation or instability, a disability rating higher than 10 percent is not warranted under Diagnostic Code 5257. The Veteran also does not have sufficiently restricted flexion or extension to warrant a higher rating of 20 percent under Diagnostic Codes 5260 and 5261. The worst knee flexion found during the appeal period has been to 130 degrees for the left knee, during the January 2000 VA compensation examination. All other examinations have found normal flexion to 140 degrees. These flexions far exceed the requirements for the 20 percent rating under Diagnostic Codes 5260, which requires flexion limited to just 30 degrees. Clearly, the Veteran's flexion is not limited to the 45 degrees required for even the most minimum compensable rating of 10 percent under DC 5260. Nevertheless, as explained, the functional limitations due to pain also must be accounted for in the disability evaluation, and he is competent to report experiencing chronic pain in his knee since this is capable of even lay observation. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). However, while the Veteran has submitted statements reporting a worsening in the pain and a decrease in the mobility in his knees - including being unable to stand more than 15-30 minutes and walk more than a few yards during the March 2009 VA compensation examination - the March 2009 and past VA examiners have found no symptoms aside from some swelling and a 15-mm anterior drawer sign in January 2000, and crepitation more recently. No instability or neurological deficit has ever been noted. Moreover, the most recent examination in March 2009 found normal range of motion of the left knee, with no pain on active motion and no additional limitation on repetitive motion. And the Veteran's left knee disability was found to have no effect on most of his activities of daily living. As well, the finding of DJD in the left knee was considered to be mild. Clearly then, the Veteran's left knee disability also does not warrant a higher rating under Diagnostic Codes 5260 and 5261 because he does not have flexion of the left knee limited to 30 degrees to warrant a rating of 20 percent under this code and he has normal (full) extension, to 0 degrees. See again, VAOPGCPREC 9-2004. The Board has once again considered the potential applicability of other diagnostic codes. See Butts, supra, 5 Vet. App. at 539; see also Pernorio, 2 Vet. App. at 629. To this effect, as with the preceding discussion of the right knee, the Board finds that the left knee disability also warrants a separate 10 percent rating under Diagnostic Code 5259 for removal of the semilunar cartilage, symptomatic. As indicated in the Joint Motion, and medical history, in November 1998 the Veteran underwent a left knee arthroscopy with partial medial meniscectomy. The Veteran's recent correspondence further denotes competent reported symptomatology of crepitation, grinding and snapping, amongst other symptoms affecting the left knee. Consequently, resolving reasonable doubt in the Veteran's favor, a separate 10 percent evaluation is warranted under Diagnostic Code 5259, effective from June 1, 1999. Extra-schedular Consideration and Conclusion Aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, 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. In this case, there initially is no basis to find that the Veteran's right and left knee disabilities (and all associated components) present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of these criteria. Essentially, the rating criteria premised upon both knee joint instability and limitation of motion with associated pain and/or discomfort (and some forms of recognized functional loss, per DeLuca v. Brown) fairly accounts for nearly all of his symptoms as presented, including from his descriptions during his VA examination and on other occasions. To the extent there are other symptoms outside of limited mobility and/or instability, the Board has likewise found that he has distinctly ratable impairment due to damage to the right and left knee cartilage. There is no indication of further potentially compensable disability in this case. Thus, the Board cannot conclude that his condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extra-schedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). For these reasons and bases, the Board is denying the claims for higher ratings for the Veteran's right and left knee disabilities to the extent they are premised on existing criteria of limited motion and instability, but granting separate ratings (so additional compensation) for symptomatic impairment following removal of the knee cartilage, bilaterally. This determination takes into full account the potential availability of "staged" rating based upon incremental increases in severity of service-connected disabilities during the pendency of these claims under review. Fenderson, 12 Vet. App. at 125-26. To the extent an even greater level of compensation is sought, the preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial rating higher than 10 percent for the DJD of the right knee, status post meniscectomy, is denied. An initial rating higher than 10 percent for the DJD of the left knee, status post repair, with instability, also is denied. However, a separate 10 percent rating is granted for the removal of the semilunar cartilage of the right knee, symptomatic, retroactively effective from June 1, 1999, subject to the statutes and regulations governing the payment of VA compensation. As well, a separate 10 percent rating is granted for the removal of the semilunar cartilage from the left knee, symptomatic, also retroactively effective from June 1, 1999, and also subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs