Citation Nr: 1318542 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-27 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee with degenerative changes, status-post surgical repair. 2. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee with degenerative changes, status-post surgical repair. 3. Entitlement to a rating in excess of 30 percent for hypermobility syndrome of the right knee. 3. Entitlement to a total rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from September 2001 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran testified as to the issues on appeal before the undersigned Veterans Law Judge at a hearing at the RO in February 2012. A transcript of that hearing has been associated with the claims file. In June 2012, the Board remanded the Veteran's claims for further evidentiary development. Specifically, the Board requested that the Agency of Original Jurisdiction (AOJ) (1) obtain any outstanding treatment records from the VA and from the Veteran's private treatment physician, G.M., M.D.; and (2) schedule the Veteran for a VA examination to determine the nature and extent of his service-connected right and left knee disorders. In June 2012, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for a VA examination of his knees. The examination was completed in August 2012, and copies of the VA examination report as well as the Veteran's updated treatment records have been associated with the Veteran's claims file. The AMC subsequently readjudicated the Veteran's appeal and issued in January 2013 a Supplemental Statement of the case (SSOC). Thus, the agency of original jurisdiction has complied with all of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Before the Veteran's claim was transferred to the Board, another rating decision was issued in January 2013 in which the RO awarded a separate 30 percent evaluation for hypermobility syndrome of the right knee under Diagnostic Code 5257. [The currently-assigned 10 percent evaluations for the service-connected chondromalacia with degenerative changes of the right knee appear to be based on the limitation of flexion of the joints.] The VA General Counsel has issued a precedential opinion holding 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. See VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (August, 1998). As such, this issue will also be addressed in the decision below. The Board notes that the Veteran filed an application for entitlement to a TDIU due to his service-connected disabilities in September 2011, based at least in part, on his knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Virtual VA file reflects that he was notified in February 2012 of the denial and the Veteran has not filed a notice of disagreement. As such, that matter is not currently before the Board. FINDINGS OF FACT 1. Chondromalacia of the right knee with degenerative changes, has been manifested by normal extension, limitation of flexion no worse than 125 degrees, even taking into account his complaints of pain; nor has he been shown to have any ankylosis; dislocated semilunar cartilage; and/or impairment of the tibia and fibula with moderate right knee or ankle disability. 2. For the period prior to August 7, 2012, the Veteran's chondromalacia of the right knee with degenerative changes, has not been manifested by recurrent subluxation or lateral instability. 3. For the period on and after August 7, 2012, the Veteran is in receipt of the maximum schedular evaluation for right knee hypermobility syndrome manifested by severe recurrent subluxation or lateral instability. 4. Chondromalacia of the left knee with degenerative changes, has been manifested by normal extension, limitation of flexion no worse than 100 degrees, even taking into account his complaints of pain; nor has he been shown to have any ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage; and/or impairment of the tibia and fibula with moderate left knee or ankle disability. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 10 percent for chondromalacia of the right knee with degenerative changes, status-post surgical repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5258-5262 (2012). 2. The criteria for a compensable rating for instability of the right knee for the period prior to August 7, 2012 have not been met. 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5257 (2012). 3. The criteria for a rating in excess of 30 percent for hypermobility syndrome of the right knee, for the period on and after August 7, 2012, have not been met. 38 U.S.C.A. §1155 (West 2002 ); 38 C.F.R. §§ 3.321, 4.7, 4.59, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for a schedular rating in excess of 10 percent for chondromalacia of the left knee with degenerative changes, status-post surgical repair have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for benefits, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish the benefit sought and must inform him/her that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran filed his claim seeking an increased rating for his service-connected right and left knee disabilities in September 2010. A letter dated in November 2010 satisfied the duty to notify provisions concerning an increased rating claim. In particular, the correspondence informed the Veteran of the need for evidence of a worsening of his service-connected disabilities. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. This letter also provided the Veteran with notice of how disability ratings and effective dates are determined. The Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he must provide, or ask VA 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 and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). In any event, reviewing the November 2010 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a) compliant notice as to his increased rating claim. Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied. No further due process development of notification of this claim is required. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records as well as all identified and available private and VA treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. Also, medical records used in the adjudication of his claim for disability benefits from the Social Security Administration (SSA) were obtained and associated with his claims file. Furthermore, the Veteran's more recent VA medical records, dated from February 2012 to August 2012, have been obtained and uploaded into the Virtual VA claims processing system. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The duty to assist also includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law. VA examinations with respect to the issue on appeal were obtained in January 2010, December 2010, December 2011 and August 2012. 38 C.F.R. § 3.159(c)(4). To that end, 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 Board finds that the VA examinations obtained in this case are adequate, as they were predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examinations fully address the rating criteria that is relevant to rating the disability in this case. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, pertaining to "impairment of tibia and fibula," a 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating contemplates malunion with moderate knee or ankle disability, and a 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion, requiring brace. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 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. § 4.71(a), DC 5003. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. 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. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September, 2004). In rating the service-connected right and left knee disabilities, all applicable diagnostic codes must be considered to include Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5261 and 5262. In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Service connection was established for chondromalacia of the right and left knees with degenerative changes, effective October 1, 2004. In September 2010, the Veteran filed his most recent claim seeking a higher rating for his service-connected knee disabilities. He is currently assigned separate 10 percent disability evaluations for his service-connected right and left knee disorders pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, the additional code is shown after the hyphen). The Board notes that the Veteran was granted a total temporary evaluation for the right knee after undergoing a right knee chondroplasty and release of lateral retinaculum procedure in April 2010. This disability evaluation was effective from April 7, 2010 to July 1, 2010. Therefore, medical evidence during this time period will not be taken into consideration when adjudicating the merits of the claim. The Veteran contends that he is entitled to ratings in excess of 10 percent for his chondromalacia of the right and left knee. In this regard, the Veteran was afforded a VA general examination in January 2010, at which time, he provided his medical history and reported numerous episodes of subluxation/dislocation of the right knee since injuring it in service. According to the Veteran, he can feel the knee start to give out once every two months, and on a scale of one to ten (with one being the least level of pain and ten being the highest), he rates his right knee pain level at a five and his left knee pain level at a two. The Veteran also reported to experience daily and "ever present" pain in the left knee, and occasional pain in the right knee four times a month. On physical examination, the Veteran was shown to have extension to -5 degrees in both knees, flexion to 150 degrees in the left knee, and flexion to 125 degrees in the right knee with mild pain at the end of motion bilaterally. The examiner observed tenderness to palpation along the medial portion of the left knee, and observed a "hypermobile patella" on that right that was tender to manipulation medially. According to the examiner, the Veteran has generalized ligamentous laxity that is greater in the right knee on flexion and extension. The examiner also reviewed a magnetic resonance imaging (MRI) of the right knee, the impression of which showed "[p]ostsurgical changes of the patella, medial femoral condyle and iliotibial band, consistent with medial patellar retinaculum repair" and "[m]ild fissuring of the patellofemoral cartilage at the patellar apex." During a February 2010 Orthopedic consultation, the Veteran reported to have suffered two right knee dislocations over the course of the past year. With respect to his left knee, the Veteran reported a history of intermittent knee pain, and described an episode of severe pain and swelling in the left knee two-and-a-half weeks prior. The Veteran denied any symptoms of instability in his left knee, but did report difficulty on weight bearing due to the pain and swelling. On physical evaluation of the right knee, the Veteran was shown to have extension to 0 degrees and flexion to 140 degrees, with pain during patellar compression and crepitus during range of motion. The Veteran was stable to varus and valgus pressure and anterior drawer testing, and his posterior cruciate ligament was described as intact. On physical examination of the left knee, the VA physician observed signs of effusion, and noted that the Veteran's range of motion was 0 to 100 degrees with pain when attempting to flex any further. The Veteran also reported pain with McMurray maneuvering but no locking. The VA physician observed tenderness to palpation over the lateral joint line but no tenderness medially. She (the VA physician) also described the Veteran's anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), lateral collateral ligament (LCL) and medial collateral ligament (MCL) as intact. The Veteran underwent an MRI of the left knee in March 2010, the findings of which revealed an intact medial collateral ligament, a normal posterior collateral ligament and normal menisci. The impression derived from this MRI report showed "[l]ikely remote partial tear of the superior ACL," no signs of a meniscal injury, "[f]ocal bony edema in the anterolateral lateral femoral condyle" and "focal cartilage edema and fissuring of the medial patellar facet" which most likely represents sequela from a transient lateral patellar subluxation. In April 2010, the Veteran private physician, Dr. G.M., performed a chondroplasty and release of lateral retinaculum procedure on the right knee. During a follow-up consultation at the VA medical center (VAMC) several days later, the Veteran reported to be doing well overall, but described ongoing pain in his left knee. An MRI report showed an "overall normal meniscus" with signs of edema in the lateral femoral condyle, and "okay" cartilaginous surfaces. On physical examination of the left knee, the Veteran's range of motion was 0 to 120 degrees with tenderness over both the medial and lateral joint lines. The McMurray's test produced positive results, and the Veteran's ligaments were described as stable. During a May 2010 VA outpatient visit, the VA physician noted that the Veteran was doing well, and other than a little stitch abscess, he was otherwise ambulating, participating in physical therapy and attempting to get better. On physical examination, the Veteran was shown to have extension to 10 degrees and flexion to 90 degrees. The Veteran underwent x-rays of the knees in August 2010, the findings of which were clear for significant degenerative changes within the medial, lateral, or patellofemoral compartments but did show "mild lateral tilt of the left patella, unchanged." VA treatment records dated in August 2010 revealed an overall improvement in the Veteran's bilateral knee condition. During a health assessment consultation, the Veteran stated that his right knee felt stable since his surgery, and further reported to have flexion to 135 degrees with the most pain when climbing up and down the staircase and with weather changes. The Veteran also described intermittent pain and swelling in the left knee but could not identify what serves to trigger these symptoms. He also described overall improvement in his left knee, and stated that while he may occasionally experience some instability, he has not suffered any falls as a result. Follow up records from Dr. G.M. reflect that the Veteran continued receiving treatment for his bilateral knee condition. At the August 2010 treatment visit, the Veteran reported significant relief following his April 2010 procedure. Based on his evaluation of the Veteran, Dr. G.M. assessed the Veteran with osteoarthritis of patellofemoral joint bilaterally and medial compartment bilateral knees. He also assessed the Veteran with status post operative arthroscopy with good results. The Veteran was afforded another VA examination in December 2010, at which time it was noted that he used a walking stick to help him ambulate. The Veteran reported to experience pain, weakness, giving way, and locking of both knees, and described the knee pain as an aching, grinding sensation that was worse in the right knee. The Veteran denied any signs of inflammation such as swelling, heat, redness or draining, and described constant pain with occasional flare-ups which arise once or twice a month, persist for about a day, and are aggravated when kneeling down and during increased humidity. The Veteran did not report any additional limitation of motion or functional impairment during his flare-ups and the VA examiner did not observe any functional limitations on standing or walking. On physical examination of the left knee, the Veteran was shown to have hyperextension to -5 degrees and flexion to 140 degrees with pain at the end of motion. The Veteran was also shown to have extension to 0 degrees and flexion to 140 degrees in the right knee, with pain at the end of motion. The examiner found no change in active or passive range of motion during repetitive testing, and further observed no additional loss of range of motion or loss of function of the involved joints, due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. In addition, both knee joints were stable to varus and valgus stress, and anterior and posterior drawer testing. The McMurray test produced negative results bilaterally and the Veteran exhibited crepitus on patellar compression testing bilaterally. Based on his review of the claims file and diagnostic records, as well as his evaluation of the Veteran, the VA examiner diagnosed the Veteran with chondromalacia of the left knee with degenerative changes status post left knee surgery, and chondromalacia of the right knee with degenerative changes status post surgical repair times two. A Social Security Administration (SSA) Disability Determination sheet reflects the Veteran's primary diagnosis of osteoarthrosis and allied disorders. See March 2011 Disability Determination and Transmittal Sheet. The Veteran was scheduled for another VA examination in December 2011, at which time he reported that he no longer uses his walking stick, but continues to receive physical therapy for his knees. He also reported ongoing flare-ups with prolonged sitting without changing positions, and prolonged standing/walking. According to the Veteran, his flare-ups impact the function of his knees and lower legs. On physical examination of the right knee, the Veteran was shown to have flexion to 135 degrees with pain at 135 degrees, and extension to 0 degrees with no objective evidence of painful motion. On physical examination of the left knee, the Veteran was shown to have flexion to 140 degrees with pain at 140 degrees, and extension to 0 degrees, with no objective evidence of painful motion. The VA examiner further marked that the Veteran was able to perform repetitive use testing with three repetitions. His range of motion measurements post repetitive testing were shown to be 0 to 135 degrees in the right knee and 0 to 140 degrees in the left, and the examiner did not observe additional limitation of motion or functional loss/impairment of the knee upon repetitive movement due to any of the listed contributing factors. In addition, the examiner noted no tenderness or pain to palpation on the joint line or soft tissues of either knee and further found no evidence of patellar subluxation or dislocation in the either knee. The Lachman and Posterior drawer tests were both shown to be normal, and the Veteran displayed normal strength to valgus and varus pressure. The examiner acknowledged the Veteran's previous arthroscopic procedures and noted that other than a residual scar, the Veteran did not experience any residual signs or symptoms associated with these procedures. The examiner further noted that the Veteran did not use any type of assistive device as a normal mode of locomotion. Upon reviewing the diagnostic records, the examiner observed no documentation of degenerative/traumatic arthritis or patellar subluxation and diagnosed the Veteran with chondromalacia of the right and left knee, with degenerative changes status post surgical repair times 2 in the right knee, and times one in the left knee. Pursuant to the June 2012 remand, the Veteran was afforded another VA examination in August 2012, at which time the VA examiner conducted a detailed review of the Veteran's medical history, and noted that the Veteran had undergone three surgical procedures on his knees, one of which was conducted on the left knee in 2005, and two of which were performed on the right knee in 2007 and 2010, respectively. According to the Veteran, his knees continue to give out on him despite routine medical treatment. The Veteran also reported to experience flare-ups twice a week at which time he stays home and off his feet for a few days once or twice a month, and is rendered unable to function. On physical examination of the right knee, the Veteran was shown to have flexion to 140 degrees, with pain at 140 degrees, and extension to 0 degrees, with no objective evidence of painful motion. On physical examination of the left knee, the Veteran was shown to have flexion to 140 degrees, with pain at 140 degrees, and extension to 0 degrees with no objective evidence of painful motion. The VA examiner indicated that the Veteran was able to perform repetitive use testing with three repetitions, and his range of motion measurements post repetitive testing were shown to be 0 to 140 degrees in the right knee and 0 to 140 degrees in the left. While the examiner did not observe additional limitation of motion upon repetitive movement, he did note that the Veteran had functional loss in his knees when the level of movement was greater than normal. In addition, the examiner noted signs of tenderness or pain to palpation on the joint line or soft tissues of both knees. The Lachman and Posterior drawer tests were both shown to be normal, and the Veteran displayed normal strength to valgus and varus pressure. The examiner also observed signs of severe recurrent patellar subluxation/dislocation in the right knee but none in the left. The examiner further noted that the Veteran had a meniscus condition, which included a meniscal tear, and frequent episodes of joint "locking," pain and effusion in both knees. When asked whether the Veteran exhibited any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his bilateral knee condition, the examiner noted that the Veteran exhibited extreme laxity of the knee structure. According to the examiner, while the Lachman's test produced normal results with distinct end points, "the knee moves more than a cent[i]meter to reach the end point on each side," and the "[p]atellae slide both medially and laterally 3 cm with minimal pressure." The examiner further noted that the Veteran does not use any assistive device as a mode of locomotion. Upon reviewing the diagnostic reports, the examiner found no documentation of degenerative or traumatic arthritis and further found no x-ray evidence of patellar subluxation. Based on his evaluation of the Veteran, the VA examiner diagnosed the Veteran with osteoarthrosis involving both knees, hypermobility syndrome in both knees, and chondromalacia of the patella in both knees. The Board finds that the Veteran is not entitled to ratings in excess of 10 percent for his service-connected chondromalacia of the right knee with degenerative changes and his service-connected chondromalacia of the left knee with degenerative changes. The Veteran is currently assigned separate 10 percent ratings for both knees by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, which governs findings of arthritis and limitation of flexion of the leg. A brief historical overview reflects that the 10 percent ratings were assigned in light of the June 2004 VA examination report which included MRI and x-ray evidence revealing signs of narrowing in the patellofemoral compartment. As detailed, his limitation of motion in both knees is noncompensable, but the 10 percent ratings are for application in light of findings of degenerative changes and painful movement. Therefore, assigning a separate rating under Diagnostic Codes 5010 and 5003 for the pain caused by degenerative findings would violate the rule against pyramiding. 38 C.F.R. § 4.414 (2012). In this regard, the Board notes the Veteran has not been shown to have limitation of flexion to 30 degrees in either knee to warrant a disability rating in excess of 10 percent. With regard to the right knee, the Veteran was shown to have flexion to 125 degrees at the January 2010 VA examination; 140 degrees at the February 2010 VA orthopedic consultation and the December 2010 VA examination; 135 degrees at the December 2011 VA examination; and 140 degrees at the August 2012 VA examination. As for the left knee, the Veteran was shown to have flexion to 150 degrees at the January 2010 VA examination; 100 degrees at the February 2010 VA orthopedic consultation; and 140 degrees at the December 2010, December 2011 and August 2012 VA examinations. As such, ratings in excess of 10 percent for limitation of flexion of the right and left knee cannot be granted at any time during the current appeal period. Likewise, extension is normal in both knees, thus noncompensable. The Board acknowledges the May 2010 VA outpatient report wherein the Veteran was shown to have extension to 10 degrees upon examination of the right knee. However, this treatment visit took place one month after his April 2010 right knee chrondroplasty. As such, it would appear that the Veteran was still in the process of healing. Moreover, the RO already assigned a temporary total evaluation for the Veteran's right knee disability for the period from April 7, 2010 to July 1, 2010. Treatment records and VA examination reports subsequent to this period reflect the Veteran's limitation of extension in the right knee to be no worse than 0 degrees (See December 2011 and August 2012 VA examination reports). Indeed, the Veteran was shown to have hyperextension to -5 degrees during the December 2010 VA examination. Thus, the Veteran is not entitled to a rating in excess of 10 percent for either knee pursuant to Diagnostic Code 5261. Further, the Board acknowledges the Veteran's contentions that an increased rating for his service-connected right knee hypermobility syndrome is warranted. Currently, this disability is evaluated as 30 percent disabling (effective August 7, 2012), by analogy under 38 C.F.R. §4.71a, Diagnostic Code 5257, which governs recurrent subluxation or lateral instability of the knee. A 30 percent disability evaluation represents the maximum scheduler evaluation under this particular code. The medical evidence of record prior to August 7, 2012 is negative for objective signs or manifestations of instability in the right and left knee. As previously discussed, the Veteran's right knee was described as stable to varus and valgus pressure and anterior drawer testing, and the VA physician described the ACL, PCL, LCL and MCL in the left knee as intact at the February 2010 VA Orthopedic consultation. In addition, report of the October 2010 MRI of the right knee reflected normal cruciate and collateral ligaments. While a March 2010 MRI of the left knee indicated a possible "remote partial tear of the superior ACL," both knee joints were shown to be stable to varus and valgus pressure, and anterior and posterior drawer testing, and the McMurray test produced negative results at the December 2010 VA examination. Moreover, at the December 2011 VA examination, the examiner noted there to be no evidence or history of patellar subluxation or dislocation in the either knee, the Lachman and Posterior drawer tests were both shown to be normal, and the Veteran displayed normal strength to valgus and varus pressure. Finally, while the August 2012 VA examiner described "extreme laxity of knee structures", the objective medical findings were clear for signs of instability in the left knee, and the examiner found no evidence or history of recurrent patellar subluxation or dislocation in the left knee. As such, the Veteran is not entitled to a separate compensable rating for instability of his service-connected left knee disability for any portion of the current appeal period. In addition, the Veteran is not entitled to a compensable rating for instability of his service-connected right knee for any portion of the current appeal period prior to August 7, 2012. The Board also finds that higher ratings are not warranted under any alternative provisions. Diagnostic Code 5256 provides for a higher rating, however, application of this code is inappropriate as there is no diagnosis of ankylosis of the knees. Furthermore, the Veteran may not be rated by analogy to this code as he has not suffered functional immobility of the knees. Likewise, Diagnostic Code 5259 does not provide for higher disability ratings, and is inapplicable. Additionally, there are no objective findings of impairment of the tibia and fibula, thus there is no basis for disability ratings under Diagnostic Code 5262. While the August 2012 VA examiner noted that the Veteran had a meniscal condition and that he experiences related symptoms of joint locking, pain, and effusion, the Veteran has never had a dislocated cartilage, nor undergone removal of his cartilage. As such, Diagnostic Code 5258 is not for application. The December 2011 VA examiner did identify residual scars on the Veteran's knees as a result of his previous arthroscopic procedures. As such, the Board has also considered whether separate ratings are available for any residual scarring. In describing the scar, the examiner noted that the Veteran's scar was neither painful, unstable nor greater than 39 square (sq.) cm in length. A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep and nonlinear and that it exceed 6 sq. inches (39 sq. cm.). The Veteran's scar does not meet that criteria. A compensable rating under DC 7802 for superficial scars requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable or painful warrant a 10 percent rating under DC 7804. A note under DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scar has not been described as unstable or painful, rendering DC 7804 inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to DC 7805 is not warranted. As such, separate compensable ratings for the Veteran's residual scars on either or both knees are not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206 -07. However, an additional "symbolic" range of motion loss for pain, excess fatigability, decreased functional ability, etc. is not warranted for either knee. In this regard, the Board observes that the Veteran has complained of pain, a locking sensation, giving way, and weakness in both knees. See December 2010 VA examination. At the August 2012 VA examination, the Veteran reported occasional flare-ups of pain which have a major functional impact and cause him to stay at home and off his feet for a few days. The examiner also noted that the Veteran experiences functional loss in both knees when performing greater movement than normal, and further identified signs of crepitus and tenderness on patellar grinding of the knees. However, the Veteran has not reported any difficulty when conducting his day-to-day tasks as long as long as he refrains from activities that require prolonged kneeling or standing. In addition, the December 2010, December 2011 and August 2012 examiners noted no objective evidence of additional limitation of motion following repetitive motion. Thus, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Board finds that the effect of this symptomatology is contemplated in the 10 percent disability evaluations assigned by this decision. The Board has considered the testimony and assertions by the Veteran pertaining to his knees. He is competent and credible to attest to the exhibited symptoms in his knees. However, the objective evidence of record is more probative and persuasive than the descriptions of his symptoms. The objective findings do not support higher ratings based on the schedular criteria. The Veteran's symptoms do not more nearly approximate the criteria for the assignment of higher ratings in any regard. Based on the above, the Board has determined that schedular ratings in excess of 10 percent for the right and left knees are not warranted. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA 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 extraschedular rating. Here, the evidence of record does not reflect that the Veteran's bilateral knee disability is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for this disability contemplate his symptoms, including pain and restricted movement, and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. As such, the threshold issue under Thun is not met, and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the service-connected bilateral knee disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. ORDER Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee with degenerative changes, status-post surgical repair is denied. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee with degenerative changes, status-post surgical repair is denied. Entitlement to a disability rating in excess of 30 percent for hypermobility syndrome of the right knee is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs