Citation Nr: 1319277 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-20 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for cholecystitis. 2. Entitlement to service connection for post-operative residuals of gallbladder removal. 3. Entitlement to a rating greater than 10 percent for degenerative arthritis of the right knee, status-post arthroscopic surgery, prior to July 11, 2011. 4. Entitlement to an increased disability rating for degenerative arthritis of the right knee, status-post arthroscopic surgery, evaluated as 30 percent disabling since September 1, 2012. 5. Entitlement to a higher initial rating for chondromalacia of the left patella, evaluated as noncompensably disabling from February 1, 2005, to June 29, 2007, and as 10 percent disabling thereafter. 6. Entitlement to a separate evaluation for lateral instability or subluxation of the left knee. 7. Entitlement to a separate evaluation for lateral instability or subluxation of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to January 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2005 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) wherein the Veteran was granted service connection for chondromalacia patella of the left knee and for degenerative arthritis of the right knee, status-post arthroscopy with removal of loose body, and was denied service connection for cholecystitis and for post-operative residuals of gallbladder removal. Although the Veteran's left and right knee disabilities were each initially evaluated as noncompensably disabling, in a December 2005 decision, the RO found there to be clear and unmistakable error in the assignment of a noncompensable evaluation for degenerative arthritis of the right knee. A 10 percent disability rating was assigned, effective February 1, 2005. The Veteran disagreed with the noncompensable and 10 percent disability ratings assigned. The Board notes that the RO later increased the left knee disability evaluation to 10 percent, effective June 29, 2007. The instant matters were previously before the Board in May 2011, at which time the Board denied entitlement to service connection for cholecystitis and post-operative residuals of gallbladder removal, and remanded for further development the issues of entitlement to increased disability ratings for degenerative arthritis of the right knee, status-post arthroscopic surgery, and chondromalacia of the left patella. After the matters were remanded by the Board, the Veteran underwent a right total knee replacement in July 2011. In August 2011, in accordance with the Board's remand instructions, the Veteran was afforded a VA examination to evaluate the current severity of his right and left knee disabilities. Thereafter, the Appeals Management Center (AMC) issued a September 2012 rating decision wherein it assigned a temporary 100 percent disability rating for the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055, which provides for a 100 percent rating for one year following implantation of prosthesis. The 100 percent evaluation was effective from July 11, 2011, to September 1, 2012, and a 30 percent evaluation was assigned thereafter. The AMC issued a supplemental statement of the case (SSOC) that same month denying ratings in excess of 10 percent for chondromalacia of the left patella and in excess of 30 percent for degenerative arthritis of the right knee, status-post arthroscopic surgery. The Board notes that in VAOPGCPREC 23-97, VA's General Counsel held that a veteran may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003 and 5257, provided that a separate rating must be based upon additional disability. As will be discussed in further detail below, the evidence raises a question as to whether separate ratings should be assigned for lateral instability or subluxation of the knees. Accordingly, because the Veteran has not disagreed with any aspect of the AMC's grant of a 100 percent rating from July 11, 2011, to September 1, 2012, and because, as will be discussed in further detail below, the evidence of record is sufficient to decide whether a rating in excess of 10 percent for degenerative arthritis of the right knee, status-post arthroscopic surgery, is warranted prior to July 11, 2011, under the currently assigned DC, but insufficient to determine whether a rating greater than 30 percent is warranted at any point since September 1, 2012, and insufficient to determine the issue of entitlement to separate ratings for the Veteran's right or left knee based on lateral instability or subluxation, the Board finds that the issues with respect to the appropriate disability ratings for the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, and chondromalacia of the left patella are more appropriately characterized as set forth on the title page of this decision. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Concerning the Board's May 2011 denial of entitlement to service connection for cholecystitis and post-operative residuals of gallbladder removal, the Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), arguing that the Board had erred by failing to consider medical information regarding the growth rates of gallstones. In a December 2012 memorandum decision, the Court set aside that part of the Board's May 2011 decision that had denied service connection for cholecystitis and post-operative residuals of gallbladder removal and remanded those matters for readjudication consistent with the Court's decision. Specifically, the Court agreed that the medical treatise evidence submitted by the Veteran concerning the growth rate of gallstones was not sufficiently discussed in the Board decision. (The decision below addresses the issues of entitlement to a higher initial evaluation for chondromalacia of the left patella and to a rating greater than 10 percent for degenerative arthritis of the right knee, status-post arthroscopic surgery, prior to July 11, 2011. The remaining issues are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran has been shown to have arthritis of the left knee, demonstrated by x-ray findings, with evidence of painful motion. 2. Since the award of service connection, the Veteran's chondromalacia of the left patella has been manifested by stiffness and painful motion without functional loss equating to limitation of flexion to 60 degrees or limitation of extension to 5 degrees. 3. Prior to July 11, 2011, the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, was manifested by occasional swelling, stiffness, incoordination, and painful motion without functional loss equating to limitation of flexion to 60 degrees or limitation of extension to 5 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no higher, for chondromalacia of the left patella have been met since February 1, 2005. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. The criteria for an initial evaluation in excess of 10 percent prior to July 11, 2011, for degenerative arthritis of the right knee, status-post arthroscopic surgery, were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, 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, 19 Vet. App. at 490. In this case, the Veteran's claims of service connection for right and left knee disabilities were granted in November 2005. He was also assigned disability ratings and effective dates. As the Veteran's current appeal stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also June 2008 VCAA Letter (outlining requirements to establish a higher rating for a service connected disability). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. The Board finds that all available evidence pertaining to the matters decided herein has been obtained. The evidence includes the Veteran's VA treatment records, VA examination reports, private medical records, and lay statements from the Veteran. In this regard, the Board notes that in its May 2011 remand, the Board directed the agency of original jurisdiction (AOJ) to obtain the Veteran's treatment record from Peterson Air Force Base, Evans Army Community Hospital, and the Air Force Academy Clinic. A review of the record shows that treatment records from those three facilities dated from July 2008 to February 2010 have been obtained. The Veteran has indicated that he sought no treatment from those facilities after February 2010, as he moved from the area. Thus, the Board is satisfied that all available treatment records have been obtained and that the terms of its earlier remand were complied with. The Veteran has also not indicated that there are outstanding available records for the time period in question that VA should have obtained, and the Board is aware of none. Further, the Veteran has been afforded several examinations in connection with his claims of service connection and appeal of the disability ratings assigned. The VA examiners indicated that the claims folder had been reviewed and they took into account the Veteran's subjective complaints associated with his service-connected disabilities. All appropriate testing was conducted, and the examiners made all findings necessary to apply the rating criteria for the Veteran's assigned DCs. Upon review of the examination reports, and in light of the VA treatment records, the Board is satisfied that the record contains sufficient evidence by which to evaluate the Veteran's service-connected right and left knee disabilities under the assigned DCs and during the relevant time periods addressed below. Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations. II. Analysis As noted in the introduction, the issues being decided herein with respect to the Veteran's left and right knee disabilities are entitlement to an increased rating for chondromalacia of the left patella, evaluated as noncompensably disabling from February 1, 2005, to June 29, 2007, and 10 percent thereafter, and entitlement to a rating greater than 10 percent for degenerative arthritis of the right knee, status-post arthroscopic surgery, prior to July 11, 2011. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). "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 (2012). Further, where the question for consideration is the propriety of the initial evaluation(s) assigned, consideration of the appropriateness of staged ratings is required. See Fenderson, supra. The evidence of record relevant to the increased rating issues decided herein shows that the Veteran was afforded a VA examination in September 2005, during which he complained of bilateral knee pain while in service and reported having undergone a right knee surgery for removal of a loose body in 1987. He reported occasionally wearing a left knee brace when exercising and stated that his left knee remained fairly stable and gave him only very occasional discomfort. He denied having any severe left knee pain or flare-ups of pain. The Veteran complained of frequent soreness in the right knee and occasional swelling that worsened with weight-bearing. He denied having any acute flare-ups of right knee pain since his surgery. Range-of-motion testing revealed left-knee flexion from 0 to 140 degrees and right-knee flexion from 0 to 130 degrees. The examiner indicated that the Veteran's right knee motion was limited by 10 degrees on account of incoordination. Repetitive motion testing produced no additional loss of motion, incoordination, weakness, pain, or fatigability. The drawer test was negative and there was no effusion and no laxity with varus or valgus stress testing. The examiner diagnosed degenerative arthritis, bilaterally, as demonstrated by x-ray findings. Records from Evans Army Community Hospital dated in November 2005 note that the Veteran presented with complaints of right knee pain for three months. Examination of the right knee revealed tenderness on palpation and the Veteran was noted to have a full range of motion, but it was indicated that the motion was abnormal. X-rays showed severe arthritic changes and the Veteran was diagnosed as having chondromalacia. Treatment notes dated in December 2005 indicated that a passive patellar tilt test of the right knee was positive; the Q angle was unknown; no anterior or posterior drawer sign was present; a McMurray test, a patellofemoral grinding test, and a mediopatellar PLICA test were all negative; a Lachman test did not demonstrate one plane anterior instability; and there was anterolateral rotary instability with no active pivot shift. In December 2005, the Veteran underwent a private magnetic resonance imaging (MRI) scan of the right knee. Results of that test showed severe chondromalacia involving the lateral patellofemoral compartment with mild lateral offset of the patella relative to the femur; a probable chronic stress reaction associated with the anterior cruciate ligament insertion; a small area of chondromalacia involving the central weight-bearing surface of the lateral femoral condyle; and a probable degenerative or post-traumatic change and scarring involving the fibular collateral ligament. The Veteran presented for a follow-up visit for his right knee in February 2006. He complained of right knee pain, worse with weight-bearing, swelling, and sudden locking up. The right knee joint was not noted to feel unstable and examination of the right knee showed patellofemoral lateral tracking; a positive McMurray test; tenderness on ambulation but not on palpation; no anterior or posterior drawer sign; and no one plane anterior instability. Active motion was from 0 to 140 degrees. On March 22, 2006, the Veteran underwent a right knee scope for lateral release, followed by four weeks of physical therapy. In a June 2006 notice of disagreement, the Veteran stated that he was then experiencing a sharp pain in his right knee after walking a relatively short distance and stiffening of the knee after sitting or driving. The Veteran also stated that he had continuous left knee pain, as well as joint stiffness especially when in a bent position such as when driving or sitting. He reported pain to be at its worst when descending stairs and stated that he was unable to run and had to avoid walking long distances. Treatment records dated in October and November 2006 revealed a full range of right knee motion. There was no effusion, edema, warmth, deformity, tenderness, or crepitus. All relevant tests were negative, but there was evidence of anterolateral rotary instability with no active pivot shift. The Veteran was afforded another VA examination in June 2007. At that time, he reported a progressive increase in the recurrence of right knee discomfort, stating that he was never free of pain, which he indicated to be moderate in severity. He stated that he had some swelling and recurrent episodes of stiffness. He reported impairment of daily activities in the sense that he did not run or lift weights and stated that descending stairs was extremely painful and standing and walking were limited to 20 minutes. Regarding his left knee, the Veteran denied having any severe pain, flare-ups, swelling, or any significant amount of stiffness. He reported the discomfort in his left knee to be activity dependant and indicated the discomfort level to be minimal. Daily activities were impaired only to the extent that he did not run or lift. The Veteran's ability to dress, undress, drive, stand, walk, sit, or climb stairs were not significantly impacted as far as his left knee was concerned. The examiner noted that the Veteran was involved in sedentary office work and that he had not missed any work on account of his left or right knee disabilities. Examination of the left knee revealed no redness, increased heat, swelling, or tenderness. Patellar inhibition test and drawer test were negative. Muscle strength and mass were normal. Range-of-motion testing demonstrated full extension and flexion to 135 degrees with very minimal discomfort reported. There was no reduction in range of motion against resistance or with repetition and no evidence of impaired endurance or post testing stiffness, weakness, swelling, or tenderness. Examination of the right knee revealed no redness or increased heat, but there was parapatellar tenderness of minimal degree. Patellar inhibition test was minimally positive, drawer test was negative, and no instability was demonstrated. Extension was limited to 4 degrees and flexion was limited to 100 degrees, with increasingly severe discomfort with repetition of both extension and flexion. The Veteran was able to flex his right knee a maximum of three times before the discomfort level was substantial, with pain noted to be the limiting factor. The examiner noted evidence of post testing stiffness and tenderness, without swelling or weakness. Quadriceps reflexes were barely discernible, but muscle mass and strength were normal. X-rays showed severe osteoarthritis of the left patellofemoral joint with lateral subluxation; mild right lateral joint compartment narrowing; and severe right patellofemoral joint compartment narrowing with lateral subluxation and tilt. The examiner stated that except as noted in the examination report, there was no change in active or passive range of motion during repeat testing against resistance or repetition, and no additional losses of range of motion due to pain, weakness, impaired endurance, incoordination, instability, or during flare-ups. In November 2008, the RO assigned a temporary 100 percent evaluation for the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, effective from March 22, 2006, to May 1, 2006, based on surgical treatment necessitating convalescence. That same month, the Veteran submitted a statement wherein he reported his right knee symptoms to then-currently exist of moderate pain when walking; recent flare-ups of pain lasting for approximately two weeks, during which he could not use stairs; pronounced pain upon ascending and descending stairs; and joint stiffness when driving or sitting. Private treatment records dated in March 2011 show that the Veteran presented with complaints of knee pain, which he indicated was constant but not severe. Range-of-motion testing revealed right knee flexion to 120 degrees and extension to 3 degrees. There was tenderness to the medial and lateral joint line and evidence of a mild valgus deformity. X-rays demonstrated severe degenerative arthritis. The physician's recommendation was for the Veteran to undergo a knee replacement. In April 2011, the Veteran testified at a Board hearing, during which he stated that he was on daily anti-inflammatory medication to alleviate his right knee pain. He indicated that he was no longer able to play basketball, walk the golf course, or run. He reported difficulty sitting for long periods of time. Concerning his left knee, the Veteran reported having pain, less severe than that felt in his right knee, which he described as a shooting pain under the knee cap when walking. Private treatment records dated in May and June 2011 note the Veteran's desire to proceed with a right total knee replacement, scheduled for July 11, 2011. He reported significant pain, use of a walking stick, severe nightly pain that kept him awake, and an inability to participate in sports or to exercise. Examination of the right knee revealed a range of motion from 3 to 120 degrees. There was no evidence of instability. Pain was present on patellofemoral compression and apprehension type maneuvers. There was also tenderness to the medial and lateral joint line and large, palpable osteophytes were present. The Veteran was afforded another VA examination in August 2011. At that time, it was noted that the Veteran had served as a civil service contractor since 2010. He denied any real restriction of occupational activity on account of his knees. With regard to his left knee, he reported fewer problems with that knee as compared to his right knee. He reported intermittent pain, controlled by anti-inflammatory medications, which pain was precipitated by walking and was felt primarily in the patella and its tendon. He denied swelling, redness, and use of an assistive device, but endorsed some joint stiffness. During a flare-up, he described his pain level to be a 2 on a scale of 10, with 10 being the worst. He stated that the pain would escalate to a 5 in severity every 6 or so weeks, but generally resolved with medication and rest. Instability was not noted. Physical examination of the left knee failed to reveal evidence of warmth, erythema, effusion, scarring, bony deformity, ankylosis, or instability. There was moderate crepitus that as audible to the examiner. Range of motion was from 0 to 125 degrees, and from 0 to 132 degrees following repetitious activity. Mild pain was the limiting factor for the left knee. There was no evidence of weakness, fatigability, or incoordination. X-rays showed moderate to marked tricompartment degenerative joint disease 1. Disability rating for chondromalacia of the left patella Since his award of service connection, the Veteran's chondromalacia of the left patella has been evaluated under the hyphenated 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5260. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated DC in this case indicates that traumatic arthritis under 5010 is the service-connected disorder that has been rated based on a limitation of motion under DC 5260. Pursuant to DC 5010, arthritis, due to trauma, substantiated by established by x-ray findings will be rated as degenerative arthritis under DC 5003, which provides for a rating based on the limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint involved is not compensably disabling under the appropriate DCs, a rating of 10 percent is assignable for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003 (2012); see also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991) (painful motion of a major joint caused by arthritis, established by x-ray, is deemed to be limited motion and entitled to the minimum 10 percent rating even though there is no actual limitation of motion). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Under DC 5260 (limitation of flexion), a noncompensable rating is assigned where flexion is limited to 60 degrees and a compensable (10 percent) evaluation is assigned where flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5260 (2012). Further, in order to obtain a compensable rating under DC 5261 (limitation of extension), extension limited to 10 degrees is required. 38 C.F.R. § 4.71a, DC 5261 (2012); see VAOPGCPREC 9-2004 (Sept. 17, 2004) (where a veteran has both limitation of flexion and limitation of extension, the limitations must be rated separately to adequately compensate for functional loss associated with the knee disability). A noncompensable evaluation is warranted under DC 5261 where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5261. Upon consideration of the evidence, the Board finds that the Veteran is entitled to a minimum compensable rating of 10 percent, but not higher, since his award of service connection for chondromalacia of the left patella. There is no question that the Veteran has arthritis in the left patellofemoral joint, as demonstrated by x-ray findings. Further, the Veteran has reported experiencing "discomfort" in his left knee, albeit mild in nature. Although painful motion was not specifically noted on examination in September 2005, the Veteran did report discomfort at that time, and later indicated continuous pain in his left knee, especially when descending stairs. Further, it is not clear from the examination report whether the examiner elicited any information from the Veteran regarding whether he experienced any amount of pain on motion. Thus, given the Veteran's complaints of left-knee pain and his diagnosis of arthritis, the Board finds that in light of the principles enunciated in Lichtenfels and when reasonable doubt is resolved in the Veteran's favor, the Veteran is entitled to the minimum compensable rating of 10 percent for his chondromalacia of the left patella even though the evidence fails to demonstrate any actual limitation of motion. See 38 U.S.C.A. § 5107(b) (West 2002); Lichtenfels, supra; 38 C.F.R. § 3.102 (2012); see also Washington v. Nicholson, 19 Vet. App. 362, 268 (2005) (veteran is competent to provide lay evidence regarding matters that are within his personal knowledge and experience). (The Board observes that the grant of service connection for chondromalacia of the left patella was based on a finding that the Veteran had a pre-existing left knee strain that was permanently worsened as a result of service. The RO determined, however, that the pre-aggravation level of disability was zero percent and thus no deduction in rating in necessary in the instant case.) Although the Board finds that the Veteran is entitled to a rating of 10 percent from the effective date of the grant of service connection for chondromalacia of the left patella, the Board can find no basis upon which to award a rating greater than 10 percent for that disability at any point during the pendency of the Veteran's claim. Range-of-motion findings dated during the relevant time period have demonstrated a full range of extension and flexion to at least 125 degrees. Accordingly, as compensable ratings under either DC 5260 or 5261 are not warranted in this case, ratings greater than the currently assigned 10 percent would not be warranted. See 38 C.F.R. § 4.71a, DCs 5260, 5261; VAOPGCPREC 9-2004. The Board has also considered whether the Veteran may be entitled to a higher rating under the following DCs applicable to disabilities of the knee: (1) DC 5256 which pertains to disabilities involving ankylosis of the knee; (2) DC 5258 which provides for a 20 percent evaluation for dislocated semilunar cartilage "with frequent episodes of 'locking,' pain, and effusion into the joint"; and (3) DC 5262 which is used to evaluate impairments of the tibia and fibula. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5262 (2012). (As noted in the introduction, the issue of entitlement to a separate rating under DC 5257, pertaining to lateral instability or subluxation, is being remanded for further development and will not be addressed herein.) There is no evidence of ankylosis of the left knee joint or any impairment of the left tibia or fibula to allow for application of DC 5256 or 5262. Further, the evidence of record does not demonstrate any complaints of dislocated cartilage or episodes of locking or effusion with respect to the left knee. Accordingly, the Board finds that the evidence does not support a rating under DC 5258. When an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In that regard, the functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Further, pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Moreover, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran reported has reported his main symptoms related to the left knee to be pain and stiffness, most often experienced after driving, sitting, or walking for any length of time and when descending stairs. In 2005, he also reported occasional use of a left knee brace when exercising. Notably, the objective evidence of record failed to show any evidence of knee pain. Indeed, there was no evidence of pain on palpation or evidence of swelling. Further, repetitive motion testing produced no additional loss of motion, incoordination, weakness, pain, or fatigability. In light of the evidence of record, the Board finds that the evidence does not support a higher rating than the currently assigned 10 percent disability rating for the Veteran's chondromalacia of the left patella. As noted above, the Veteran has been rated based on his complaints of painful motion in accordance with the principles enunciated in Lichtenfels, supra. In this regard, the Board notes that while pain may cause a functional loss, pain itself does not constitute functional loss. Indeed, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); see 38 C.F.R. § 4.40. Thus, even considering the DeLuca factors, regardless of their presence or of the point at which the Veteran began to experience pain, without some evidence of a resulting functional impairment that more nearly approximates the criteria for the next highest rating, the evidence of record, to include the Veteran's subjective complaints, simply fails to establish entitlement to rating greater than 10 percent. This is so because an evaluation in excess of the minimum compensable rating must be based on demonstrated functional impairment. 2. Disability rating for degenerative arthritis of the right knee prior to July 11, 2011. The Board also finds no basis upon which to award a rating greater than 10 percent for the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, at any point prior to July 11, 2011. During the relevant time period, the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, was also rated under DC 5101-5260. The evidence of record dated prior to July 11, 2011, demonstrated flexion to no worse than 100 degrees and no more than a 4 degree loss of extension. Accordingly, because a compensable rating under DC 5260 was not warranted during that period of time, a rating greater than 10 percent would not have been warranted. See 38 C.F.R. § 4.71a, DCs 5260. Further, although the evidence shows some loss of extension, a separate rating under DC 5261 is not warranted because the leg can extend beyond the 5 degree point, the point at which a noncompensable rating would be warranted. See VAOPGCPREC 9-2004 (providing an example where a disability rating under DC 5261 would not be in order because the leg could extend beyond the 5 degree point). In other words, although less than full extension has been demonstrated, because the loss does not reach the level that would be considered even noncompensable, there is no basis for a separate rating. There is also no evidence of ankylosis of the right knee or any impairment of the tibia or fibula to allow for application of DC 5256 or 5262. Further, the evidence of record does not demonstrate any complaints of dislocated cartilage or episodes of locking or effusion. Although a February 2006 treatment note indicates that the Veteran complained of his right knee suddenly locking up, there is no evidence of dislocation. Accordingly, the Board finds that the evidence does not support a rating under DC 5258. As with the Veteran's left knee, the Board does find that application of the DeLuca factors supports a right knee rating greater than 10 percent at any point prior to July 11, 2011. This is so because even considering the DeLuca factors, regardless of their presence or of the point at which the Veteran began to experience pain or the intensity of the Veteran's pain, without some evidence of a resulting functional impairment that more nearly approximates the criteria for the next highest rating, the evidence of record, to include the Veteran's subjective complaints, simply fails to establish entitlement to higher ratings. See Mitchell, supra. In finding that evaluations greater than 10 percent are not warranted for the Veteran's chondromalacia of the left patella or his right knee degenerative arthritis prior to July 11, 2011, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating greater than those already assigned under DC 5010-5260 for the Veteran's right or left knee disability at any point during the relevant time periods. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). The above determinations are also based upon consideration of applicable rating provisions and Board finds that the level of severity and symptomatology are adequately compensated by the schedular criteria found in the rating schedule for assigned DCs. Indeed, the Veteran's main symptoms have been pain and stiffness, which cause a limitation of motion and inhibit his ability to participate in certain activities on account of the pain. Even in consideration of the Deluca factors, the Board finds no evidence demonstrating an exceptional disability picture such that the available schedular evaluations for the Veteran's service-connected right and left knee disabilities are inadequate. Referral for extraschedular consideration is therefore not required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2012). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record. In this case, the Board finds that the issue of entitlement to TDIU has not been raised by the Veteran or the record, as there is no indication that the Veteran is unemployable. See Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009) (the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits"). Indeed, the evidence of record shows that the Veteran is working. ORDER Entitlement to a disability rating of 10 percent, but no higher, for chondromalacia of the left patella is granted from February 1, 2005, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a higher evaluation for degenerative arthritis of the right knee, status-post arthroscopic surgery, prior to July 11, 2011, is denied. REMAND Concerning the issues of entitlement to service connection for cholecystitis and post-operative residuals of gallbladder removal, a review of the evidence of record shows that the presence of gallstones was confirmed via ultrasound done in January 2007. The Veteran was diagnosed as having cholelithiasis (gallstones) with bile duct calculi and cholecystitis (inflammation of the gallbladder). The Veteran underwent a cholecystectomy (surgical removal of the gallbladder) in October 2007. Postoperative notes indicated that "numerous" gallstones were present and that the gallstones measured up to 1.2 centimeters in diameter. Medical treatise evidence submitted by the Veteran reflects that gallstones grow at a rate of 1 to 2 millimeters per year. The Veteran had argued that based on this growth rate and given that the largest stones removed from his gallbladder in October 2007 were 1.2 centimeters (or 12 millimeters), gallstones must have been developing before his active duty terminated in January 2005. Also as noted in the introduction, the AMC issued a September 2012 rating decision wherein it assigned a 100 percent disability rating for the Veteran's degenerative arthritis of the right knee, status-post arthroscopic surgery, under the provisions of DC 5055, effective from July 11, 2011, to September 1, 2012. A 30 percent evaluation was assigned from September 1, 2012. In its September 2012 decision, the AMC noted that the 30 percent evaluation was the minimum rating available under DC 5055 and that the evidence of record was insufficient to determine whether a rating in excess of 30 percent was warranted. Notably, the AMC acknowledged that the August 2011 VA examination report could not be used for rating purposes because that examination was given less than two months after the Veteran's right total knee replacement surgery and his one-year convalescent period had not yet ended. The AMC indicated that it had asked the RO to request an "At Once" examination to determine the current severity of the Veteran's right knee disability. To date, it does not appear as though any such examination has been scheduled and/or conducted. Accordingly, as the evidence of record is insufficient to rate the Veteran's degenerative arthritis of the right knee since the expiration of his one-year period of convalescence on August 31, 2012, the matter must be remanded for the Veteran to be afforded a VA examination to determine the current severity of his right knee disability. The Board finds that the evidence of record also raises a question as to whether separate evaluations for lateral instability or subluxation of the right or left knee may be assigned. As noted in the introduction, a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. See VAOPGCPREC 23-97; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (providing for separate ratings for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). Notably, treatment records dated in December 2005 and November 2006 note anterolateral rotary instability with no active pivot shift. However, the December 2005 entry also stated that the Lachman test did not demonstrate one plane anterior instability, and in February 2006 the Veteran's right knee joint did not feel unstable and there was no evidence of one plane anterior instability. The report of the June 2007 VA examination also indicated no instability, and instability was not noted in private treatment records dated in May and June 2011 or on examination in August 2011. Furthermore, X-rays findings dated in June 2007 showed severe osteoarthritis of the left patellofemoral joint with lateral subluxation and severe right patellofemoral joint compartment narrowing with lateral subluxation and tilt; however, subluxation was not noted elsewhere in the record. Given the conflicting evidence of record, the Board finds that the issues of entitlement to separate evaluations for lateral instability or subluxation of the right or left knee must be remanded for a medical opinion to determine whether, at any point during the applicable time periods, the Veteran had instability or subluxation of either knee joint. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's cholecystitis and claimed residuals of a gallbladder removal. The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should review the evidence of record, to include the Veteran's lay statements regarding his in-service symptoms, as well as the treatise evidence submitted in support of his claim, and render an opinion as to whether it is at least as likely as not that the Veteran required removal of the gallbladder as a result of a disease or injury incurred in or related to service, or within an applicable presumptive period. As part of the opinion, the examiner should determine whether the Veteran's gallstones, first shown on ultrasound in January 2007, were either incurred in service, manifest to a degree of 10 percent or more within a year following the Veteran's separation from service in January 2005, or otherwise attributable to service. If the examiner determines that the medical treatise evidence does not support a finding that the Veteran's gallstones were incurred in service, or manifest to a compensable degree within one year of separation from service, the examiner must provide medical reasons for that determination. The examiner should also provide an opinion as to whether the Veteran has had cholelithiasis and/or cholecystitis at any point since he filed his service connection claim on November 15, 2007, subsequent to his gallbladder removal. The examiner must provide support for all opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee degenerative arthritis , as well as to determine whether the Veteran is entitled to a separate rating based on lateral instability or subluxation of the right or left knee joint. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should be asked to review the record, take a detailed history from the Veteran with regard to the progression of his degenerative arthritis of the right knee since September 1, 2012, and provide a complete assessment of the severity of the disability. All appropriate tests and studies, to include x-rays, should be performed and all clinical findings should be reported in detail. The results of any testing must be included in the examination report. The examiner should identify all chronic orthopedic manifestations of the Veteran's right knee disability and include range-of-motion findings. The examiner should state whether the Veteran's right knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain. The examiner is specifically asked to comment on whether any painful motion or weakness is severe, or, in the alternative, whether there are intermediate degrees of residual weakness, pain, and/or limitation of motion. The examiner should also provide an opinion as to the extent of functional loss due to pain, incoordination, weakness, pain on flare-ups, and fatigability. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits and should be done for both loss of extension and loss of flexion. The examiner is also requested to review the record and opine whether the Veteran has, at any point during the appeal period, had recurrent subluxation or lateral instability of either the right or left knee joint. If the examiner finds evidence of lateral instability or subluxation, the examiner should indicate during what periods of times the Veteran experienced lateral instability and/or subluxation. In rendering this opinion, the examiner is requested to reconcile the conflicting evidence of record outlined above. The examiner must provide support for all opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the following issues: (1) entitlement to service connection for cholecystitis; (2) entitlement to service connection for post-operative residuals of gallbladder removal; (3) entitlement to an increased disability rating for degenerative arthritis of the right knee, evaluated as 30 percent disabling since September 1, 2012; (4) entitlement to a separate evaluation for lateral instability or subluxation of the left knee; and (5) entitlement to a separate evaluation for lateral instability or subluxation of the right knee. In readjudicting the Veteran's rating claims, the AOJ should also consider the potential applicability of staged ratings should be considered. See Fenderson, supra. If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs