Citation Nr: 1319550 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-46 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating (evaluation) in excess of 10 percent for left knee stress fracture of medial tibial plateau (left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 2007 to January 2008. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the RO in Indianapolis, Indiana, which granted service connection for a left knee disability and assigned an initial rating of 10 percent, effective February 1, 2008. FINDING OF FACT For the entire initial rating period, the Veteran's left knee disability has been manifested by painful motion with predominantly normal extension, with flexion, at worst, to 80 degrees, without lateral instability or recurrent subluxation, and without dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joint. CONCLUSION OF LAW For the entire initial rating period, the criteria for a disability rating higher than 10 percent for the Veteran's left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5099-5024 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. Because this is an appeal that arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the left knee disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, and statements from the Veteran. The Veteran was also afforded VA examinations in August 2008 and February 2012. As the VA examination reports were written after an interview with the Veteran and contained specific findings indicating the nature and functional limitations of the Veteran's left knee disability, the VA examinations are adequate for rating purposes. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Additionally, the Veteran and his representative have not 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. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability ratings assigned to his service-connected disabilities by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. As the Board will discuss in more detail below, the Board finds that symptoms and impairment related to the left knee disability have not changed in severity over the course of the appeal to warrant a staged rating. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. 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. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Initial Rating for Left Knee Disability For the entire initial rating period under appeal, the Veteran's left knee disability, diagnosed as stress fracture of medial tibial plateau, has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5024. The Board notes that 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. Diagnostic Code 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a. 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 5024 is used to denote the rating criteria for tenosynovitis. Diagnostic Code 5024 (tenosynovitis) provides that rating shall be based on limitation of motion of the affected parts, as arthritis, degenerative. Degenerative arthritis is the subject of Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis must be established by X-ray evidence. Evaluations for degenerative arthritis shall be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If, however, evaluation on this basis results in a noncompensable evaluation, the Veteran shall be awarded a 10 percent rating for each major joint or group of minor joints affected by limitation of motion, to be combined but not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. Diagnostic Code 5260 addresses limitation of motion with respect to flexion. Flexion limited to 45 degrees warrants a 10 percent evaluation. A 20 percent rating requires flexion limited to 30 degrees. The maximum rating of 30 percent is reserved for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 10 degrees merits a 10 percent evaluation. A 20 percent rating is reserved for extension limited to 15 degrees, while a 30 percent rating is reserved for extension limited to 20 degrees. Extension limited to 30 degrees warrants a 40 percent evaluation. The maximum 50 percent rating is awarded when there is extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5257 sets forth a 10 percent evaluation for slight impairment due to recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate impairment due to recurrent subluxation or lateral instability. Severe impairment due to recurrent subluxation or lateral instability results in the maximum 30 percent evaluation. 38 C.F.R. § 4.71a. Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include: Diagnostic Code 5256 for ankylosis of the knee, Diagnostic Code 5258 for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint, Diagnostic Code 5259 for symptomatic removal of the semilunar knee cartilage, Diagnostic Code 5262 for impairment of the tibia and fibula, and Diagnostic Code 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Separate disability evaluations are assigned where a veteran has both a compensable (10 percent or higher) limitation of flexion and a compensable limitation of extension of the same knee pursuant to Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-04. A Veteran may also receive separate ratings for arthritis and instability of the same knee under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 09-98; VAOPGCPREC 23-97; see also Esteban, 6 Vet. App. at 259; Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). The Veteran contends that he experiences chronic left knee pain which he claims is worse when walking, squatting, stair climbing, and lifting. After review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period, the Veteran's left knee disability has been manifested by painful motion with predominantly normal extension, with flexion, at worst, to 80 degrees, without lateral instability or recurrent subluxation, and without dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joint. For the reasons discussed in detail below, the Board finds that the criteria for a disability rating higher than 10 percent for the Veteran's left knee disability have not been met or more nearly approximated, and the criteria for separate compensable ratings for knee disabilities have not been met. The evidence of record includes an August 2008 VA examination where the Veteran reported chronic left knee pain with difficulty walking and squatting. Upon physical examination, the examiner noted pain of the left knee on palpation over the left medical joint compartment and left medial tibial plateau. Range of motion testing revealed flexion to 135 degrees with pain and normal extension. Good stability of the medial and lateral collateral ligaments was noted. Both the McMurray test (used to evaluate individuals for tears in the meniscus) and Lachman test (used to confirm integrity of the anterior cruciate ligament of the knee) were negative. The examiner noted that the Veteran's gait was with limping on the left leg. In a June 2009 VA treatment record, the Veteran reported continued left knee pain. The examiner noted that the Veteran ambulated with his left knee flexed with weight-bearing and antalgic gait on the left. Upon physical examination, the VA physical therapist noted left knee flexion to 100 degrees and extension to 30 degrees. Repetitive range of motion testing was not conducted. A moderate amount of swelling was noted in the left knee and palpation revealed tenderness over the patellar tendon. Anterior drawer, posterior drawer, and drop test were negative. The Veteran was seen one month later in July 2009 by a VA chief orthopedic surgeon. The VA doctor noted that the Veteran had undergone an MRI which revealed a small effusion and possible resolving contusion laterally in the tibial plateau. During the consultation, the Veteran reported medial left knee pain. The VA doctor stated that the Veteran walked with a rather exaggerated antalgic gait on the left and the Veteran also had a cane which he used in the left hand. Upon examination, the VA doctor stated that the Veteran had full and normal range of motion of the left knee. There was no swelling, no ligamentous laxity, no pain with patellar compression or range of motion, and no instability of the patella or knee itself. He had excellent quad strength and tone equal to this asymmetric right leg. The Veteran reported that he had been able to work on his feet for eight hours, lift up to 50 pounds, and occasionally climbed stairs, squatted, and kneeled on the left knee. The VA doctor stated that he believed the Veteran was exaggerating his symptoms. The Veteran was afforded a second VA examination in February 2012. The Veteran reported intermittent flare-ups about every two to three months which he treated with anti-inflammatory medication. Upon physical examination, range of motion testing revealed left knee flexion to 80 degrees, with pain beginning at 70 degrees. Extension was normal with no objective evidence of pain. Upon repetitive testing, flexion was to 120 degrees and extension was normal. As for functional impairment, the VA examiner noted less movement than normal, pain on movement, deformity, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Tenderness on palpation was noted in the left knee. Strength was normal in the left knee. Anterior instability, posterior instability, and medial-lateral instability were normal. There was no evidence of subluxation and/or dislocation of the left knee. The VA examiner noted that the Veteran used a brace and cane occasionally. Degenerative or traumatic arthritis was not noted. Upon review of the record, the Board finds that the weight of the evidence demonstrates that the Veteran has had left knee pain, pain on motion, flexion at worst to 80 degrees, and extension predominantly within normal limits. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to a minimum compensable (10 percent) rating for such symptomatology as pain that limits motion to a noncompensable degree. See 38 C.F.R. § 4.71a, Diagnostic Code 5003; DeLuca, 8 Vet. App. 202; Burton v. Shinseki, 25 Vet. App. 1 (2011). Thus, the evidence demonstrates that the 10 percent disability rating is appropriate under Diagnostic Code 5003 for the Veteran's painful left knee for the entire initial rating period. The Board has specifically considered Diagnostic Code 5260, which contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 15, 30, 45, and 60 degrees, disability ratings of 30, 20, 10 and 0 percent, respectively, are assigned. 38 C.F.R. § 4.71a. Here, the Veteran's left knee flexion was to 135 degrees in the August 2008 VA examination, 100 degrees in the June 2009 VA physical therapy note, normal in the July 2009 orthopedic surgery consolation, and 80 degrees during the February 2012 VA examination. Therefore, the criteria for a compensable disability rating under Diagnostic Code 5260 (limitation of flexion to 45 degrees) have not been met or more nearly approximated for the entire initial rating period. The lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support a rating in excess of 10 percent under Diagnostic Code 5260 (limitation of flexion) for arthritis of the left knee for any period. 38 C.F.R. § 4.71a. Further, Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 45, 30, 20, 15, 10, and 5 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had normal extension on all examinations except during the June 2009 VA physical therapy report where extension was limited to 30 degrees. The Board finds the June 2009 VA treatment note to be of less probative value than the August 2008 and February 2012 VA examinations. In this regard, the Board notes that the June 2009 VA physical therapist did not perform repetitive range of motion testing of the left knee. Further, the physical therapist noted that the Veteran's left knee pain had "remained the same since his original injury." That notwithstanding, range of motion on testing (extension) was significantly more limited than past and subsequent examinations. For example, only one month after the June 2009 VA physical therapy consultation, the Veteran was examined by a VA orthopedic surgeon, who found normal range of motion of the left knee. Notably, the July 2009 VA orthopedic surgeon stated that he believed that the Veteran was exaggerating his symptoms. Subsequently, in the February 2012 VA examination, the Veteran again had normal extension of the left knee. In sum, the Board finds that the weight of the competent and probative evidence of record demonstrates that the Veteran's left knee extension has manifested pain and noncompensable limitation of extension throughout the entire initial rating period. Thus, as the criteria for a higher disability rating under Diagnostic Code 5261 have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support a rating in excess of 10 percent under Diagnostic Code 5261 for the left knee disability for any period on appeal. 38 C.F.R. § 4.71a. As the evidence does not show a combination of extension limited to 10 degrees with flexion limited to 45 degrees, the Board further finds that a separate compensable ratings for limitation of extension (Diagnostic Code 5261) and limitation of flexion (Diagnostic Code 5260) are not warranted. See VAOPGCPREC 9-04. In addition, the Veteran had tenderness and pain, but no instability of the left knee joint. See August 2008 and February 2012 VA examination reports; see also Dorland's Illustrated Medical Dictionary 944 (32nd ed. 2012) ("functional instability" defined as inability of a joint to maintain support during use). Further, upon review of the lay and medical evidence, the Board finds that the Veteran has not reported knee instability. As such, a separate rating on the basis of other impairment of the left knee, including recurrent subluxation or lateral instability, is not warranted. See Diagnostic Code 5257. The Board has also considered whether any other diagnostic code would allow for a rating in excess of 10 percent for the Veteran's left knee disability. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Although the Veteran reported symptoms of pain and effusion, the medical evidence revealed no complaints of locking and no showing of dislocation of the semilunar cartilage; therefore, Diagnostic Code 5258 does not apply. Diagnostic Code 5259 addresses removal of symptomatic semilunar cartilage, but there is no indication that the Veteran has undergone such a procedure; thus, Diagnostic Code 5259 does not apply. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. Finally, in considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as the evidence does not show knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for left knee disability for the entire initial rating period on appeal. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's left knee disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's left knee disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 5024 (which in turn rates on Diagnostic Code 5003) specifically provides for limitation of motion, including due to pain and other orthopedic factors, such as fatigability, which are part of the schedular rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's left knee disability has been manifested by pain, an abnormal gait, and limitation of motion, at worst, to 80 degrees of forward flexion, and normal extension (except for one occasion where extension was limited to 30 degrees). The schedular rating criteria specifically allow for different ratings based on the severity of the limitations of motion of the knee. Further, the schedular rating criteria also provide for potentially separate schedular ratings, including under Diagnostic Code 5258 (subluxation or instability of the knee); however, the criteria have not been met. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the functional limitation (lifting, standing, walking) and the effect on his daily life. In the absence of exceptional factors associated with the Veteran's left knee disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating in excess of 10 percent for a left knee disability is denied ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs