Citation Nr: 1320162 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-36 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent before September 24, 2012 for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy. 2. Entitlement to an evaluation in excess of 30 percent from September 24, 2012 for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1993. This case initially came before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied an increased rating for postoperative residuals of left medial meniscectomy with X-ray evidence of arthritis and painful motion, then rated 10 percent disabling. In October 2010, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. The VLJ agreed to hold the record open for an additional 60 days pending receipt of additional medical evidence. On January 14, 2011, the Board received additional evidence from the Veteran, which has been associated with the claims folder. The VLJ accepted an oral waiver of consideration by the Agency of Original Jurisdiction at the October 2010 hearing. See 38 C.F.R. § 20.1304(c). In February 2011, the Board bifurcated the claim, addressing whether the Veteran was entitled to an increased rating for instability or subluxation residual to left medial meniscectomy under 38 C.F.R. § 4.71, Diagnostic Code (DC) 5257, and whether the Veteran was entitled to a separate rating under any other potentially applicable diagnostic code. The Board ultimately concluded that the Veteran was entitled to a separate 10 percent rating for limitation of extension of the left knee. The Board also remanded a claim for entitlement to a total disability rating based on individual unemployability (TDIU), which the RO granted in February 2012. The Veteran appealed the Board's denial of higher ratings for his left knee disabilities to United States Court of Appeals for Veterans Claims (the Court). In March 2011, the RO implemented the grant of entitlement to service connection for left knee arthritis with limitation of extension. In developing the TDIU claim, the RO afforded the Veteran an April 2011 VA examination as to the severity of each of his service connected disabilities, including those relating to the left knee. In a September 2012 decision, the Board denied an increased evaluation in excess of 10 percent for recurrent sublaxation or instability of the left knee. The Board also remanded the issue of an increased evaluation for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy, to include whether any higher or separate rating is warranted for dislocation of symptomatic removal of semilunar cartilage. In a February 2013 rating decision, the RO increased the evaluation of left knee arthritis with limitation of extension and noncompensable scar to 30 percent disabling effective September 24, 2012 (date of VA examination). FINDINGS OF FACT 1. Prior to September 24, 2012, left knee arthritis with limited extension and post operative medial meniscectomy was manifest by episodes of pain, locking and effusion. 2. The Veteran's left knee arthritis is manifest by functional impairment with extension limited to 20 degrees from September 24, 2012. CONCLUSIONS OF LAW 1. Prior to September 24, 2012, left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy was 20 percent disabling. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5258-5261 (2012). 2. The criteria for an increased evaluation for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy, currently rated 30 percent disabling from September 24, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a June 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to an increased rating for his left knee disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the June 2008 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the June 2008 letter. The RO also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claims. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in the August 2009 statement of the case. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. The Veteran was also afforded various VA examinations in connection with his claims, to include the recent September 2012 examination. As shown below, this examination was adequate with regard to the claim being decided herein, because it was based on consideration of the Veteran's prior medical history and also described the left knee limitation of motion in sufficient detail to allow the Board to make a fully informed evaluation as to the claim being decided herein. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In addition, the evidence does not indicate any worsening of limitation of motion, and the mere passage of time does not trigger VA's duty to provide additional medical examination unless there is allegation of deficiency in the evidence of record. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007)). Finally in this regard, during the October 2010 Board hearing, the undersigned explained the issue on appeal, suggested the submission of evidence that may have been overlooked, and held open the Veteran's claims file was left open for 60 days in order to allow him time to submit additional evidence. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Thus, the claim for entitlement to an evaluation in excess of 10 percent before September 24, 2012 and in excess of 30 percent from September 24, 2012 for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy is ready to be decided herein. Factual Background In an August 1993 rating decision, the RO granted service connection for post operative residuals of left medial meniscectomy with X-ray evidence of arthritis and painful motion. A 10 percent disability evaluation was assigned under DC 5257, applicable to recurrent subluxation or lateral instability. A March 2008 private X-ray of the left knee shows advanced osteoarthritis and ossification within the intercondylar notch, previously noted in 1995. A March 2008 private treatment note reflects an assessment for left knee pain and weakness, status post meniscus repair. Clinical findings show no sensory or motor dysfunction. Gait and stance were normal. In June 2008, the Veteran filed a claim for an increased rating for his left knee disability. In July 2008, a VA examination was conducted. The Veteran complained of left knee pain. He reported buckling, popping, and grinding symptoms. It was noted that he used a cane. He denied use of a knee brace. The Veteran stated that he was unable to walk greater than 6 miles or lift more than 60 pounds. He further stated that he could not participate in sports and that he was not working. Flare-ups were described as occurring for 3 to 4 seconds with no additional activity restrictions. Clinical findings reflect that the Veteran ambulated with a limp and used a cane. Motor strength was 5/5. Deep tendon reflexes were 2. There was crepitus, but no instability, tenderness, or warmth. Range of motion testing showed extension to 10 degrees with pain and flexion to 130 degrees with pain. The examiner commented that there was "No diminution with repetitive testing. No DeLuca criteria." The impression was left medial meniscal tear and chondromalacia patellae and bone on bone osteoarthritis. Following receipt of x-ray results showing advance osteoarthritis and joint mice, the examiner provided an addendum to his report. Therein, he stated that there was no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. A July 2008 private treatment note reflects an evaluation of systems. It was noted that there was normal movement of all extremities and no musculoskeletal symptoms. Motor examination showed no dysfunction; balance was normal; and gait and stance were normal. In an August 2008 statement, the Veteran expressed dissatisfaction with the July 2008 VA examination report. He stated that the examiner selectively reported his statements, did not ask why he did not use a knee brace, mistakenly said that he walked six miles rather than walked on a 6 mile track, neglected to report that he had had a leg rash, did not adequately describe his scar, failed to report that he was a candidate for total knee replacement, and failed to remark on the unnatural angle of his left foot. The Veteran reported that he preferred a cane because a knee brace was uncomfortable and he was concerned about a hard fall. He further reported that he sometimes used an Ace bandage wrap for stability, and that he walked 30 minutes a day since his April 2008 heart surgery. An August 25, 2008, private treatment note reflects that the Veteran presented with complaints of left knee pain after repetitive kneeling/bending and then mowing the grass. By history, he had left knee joint pain, swelling, and inability to straighten left knee. It was noted that the knee did not suddenly lock up or buckle. Clinical findings reflect limitation of motion; pain on motion; effusion, tenderness on palpation; and tenderness on ambulation. There was no erythema, warmth, deformity, popliteal cyst, or crepitus. The patella was not shifted laterally or medially. There was no medial or lateral instability. No anterior drawer sign was present. No posterior drawer sign was present. Lachman's testing did not show one plane anterior instability. McMurray's test was negative. Apley's compression test was negative. An apprehension test was negative. The assessment was hydrarthrosis. An August 22, 2008, left knee X-ray shows advance degenerative changes with large knee joint effusion. An August 29, 2008, private follow-up note for heart treatment reflects left knee swelling and that the Veteran walked on crutches. Report of SSA disability examination dated December 2008 reflects, by history, that the Veteran did well with his left knee until late 2006 when knee pain became unbearable and total knee replacement was recommended by a doctor. The Veteran indicated that he could not undergo knee replacement until time had elapse after his heart surgery. The Veteran complained of left knee pain, described as constant and sharp-measuring 8 on a scale 1 to 10. Pain is relieved with rest. Pain is worsened with movement-such as, walking, bending, stooping, and exercise. The Veteran reported that pain affected his ability to perform any kind of work-related function. He reported that his knee prevented him from working. Per the Veteran, he could stand for 3 to 4 hours, sit for about 1.5 hours, and lift or carry 40 to 50 pounds. Pain did not affect his ability to "move about," but "he does not know if his knee will buckle on him." The Veteran "described his ability to ambulate effectively and the ability to sustain a reasonable working pace of essentially normal." Clinical findings from the December 2008 examination reflect abnormal gait, favoring the left knee. The Veteran could not squat. It was noted that the Veteran did not use any assistive or ambulatory device. Slight swelling and tenderness of the left knee was found. There was no increased heat on palpation, no redness, no audible or palpable crepitus, and no malalignment of the articulating bones. Muscular atrophy of the surrounding tissue was not shown. Left knee muscle strength was diminished. Range of motion testing showed extension to 0 degrees and flexion to 120 degrees. The assessment included severe advance osteoarthritis of the left knee. A January 2009 SSA medical record reflects as follows: The claimant says that his activities are not really limited. He just deals with a lot of pain. He was offered rehab at the VA but says he declined it because he did not actually think he needed it. He thinks he could walk 1/2 mile but has not tested it. He is a workaholic. He is very sore at the end of the day. He has pain in his right shoulder and left knee. They could not drain the fluid in his left knee because he is on blood thinners....[ ]. He can walk up a flight of stairs, but has to take it slow. He does not use a cane or a walker. He is able to drive. He does not have a handicap sticker. . .[]. He is able to do yard work. He mows the grass and rakes leaves. He just cannot lift anything heavy. A private treatment report dated February 2009 reflects complaints of locking and swelling in the past week. He rated pain as 8/10 when it is giving him a lot of problems. He reported using an altered gait and difficulty straightening the knee. He treats with Ibuprofen. Clinical findings reflect minimal crepitus, negative Lachman's test, and no varus valgus instability. Range of motion tests revealed extension limited to 10 degrees and flexion limited to 120 degrees. McMurray's test was negative. Apley's compression test was negative. There was no increased warmth or tenderness. Patella was stable with a negative apprehension sign. The assessment was end-stage degenerative changes to the left knee. It was noted that this had been smoldering a long time and that activity exacerbates pain. Total knee arthroplasty was discussed along with conservative therapy. A February 2009 private MRI shows intact knee ligaments (anterior, posterior, medial and lateral); large loose body within the intercondylar notch; absence of medial meniscus, oblique tear of the lateral meniscus with lateral femoral condyle cartilage thinning; chondromalacia patella; osseous degenerative change, and small joint effusion. In October 2010, the Veteran testified before the undersigned VLJ. He reported that his symptoms were locking, popping, and pain with occasional swelling and buckling of the knee when walking. He reported limitation of motion, using a cane with ambulation, and difficulty with stairs and uneven ground. The Veteran testified that his left knee locks about 20 to 30 times a day and goes out every day, about 3 to 4 times a day. See Transcript at 13. The Veteran indicated that he had 10 degrees of extension, he could not fully straighten his left knee. He further indicated that pain begins at about 20 degrees of flexion, and that he was unable to flex beyond 35 to 40 degrees. The Veteran reported that he did not understand the measurement of range of motion in terms of "degrees." The Veteran testified that his condition was the 'same' as when was last examined by the VA, but on repeated asking from his representative he stated it was a little bit worse, and then on further repeated asking from his representative he stated that the left knee was worse than when he was last examined. He stated that he now need a total knee replacement. See Transcript at 7-8. In January 2011, the Board received additional medical evidence from the Veteran. These records reflect that the Veteran was seen by a private physician in October 2010 for multiple disorders. The typed report of examination reflects normal balance and that the Veteran walked with a limp. It was noted that the Veteran had frequent locking, popping, slipping and swelling. X-ray showed severe advanced degenerative joint disease. A November 2010 private treatment note reflects left knee range of motion from 8 to 100 degrees comfortably. Flexion was painful when motion was continued to 110 degrees. There was a stable ligament examination. Various stress testing showed a little mild laxity. The plan was to initiate physical therapy working on range of motion and strengthening exercises. The physician noted that a future knee replacement was needed, but he was not ready at this time. The Board notes that on the April 2011 VA general medical examination conducted in connection with the Veteran's claim for a TDIU, he reported his in-service injury and surgery, that he used a cane but no crutch or brace, that he had daily constant pain, flare-ups, was recommended to have a knee replacement, took medication, could not walk long distances, stand for long periods of time, run, or climb stairs. On examination, Lachman's McMurray's and Drawer tests were all negative, and there was no instability of the MCL or LCL bilaterally. Range of motion was 0 to 80 degrees. Pursuant to Board remand, the Veteran was afforded another VA examination in September 2012. The examiner noted that the Veteran had osteoarthritis of the left knee. Range of motion noted 90 degrees of flexion with pain (no change with repetitive motion). Extension was noted at 20 degrees with no objective evidence of pain (no change with repetitive motion). The examiner noted pain on movement, deformity, atrophy of disuse, instability of station, disturbance of locomotion and interference with sitting, standing, and weight-bearing. There was tenderness or pain to palpation for joint line. Left knee flexion muscle strength was 4/5. The Veteran had mild medial lateral instability. There was no history of recurrent patellar subluxation or dislocation. The Veteran had 6 centimeters nontender of the left medial knee. The Veteran had a history of meniscal tear, frequent episodes of joint locking, and frequent episodes of joint pain. The examiner noted no functional impairment of the knee such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran does not have a scar that is painful or unstable or has a total area of all related scars greater than 39 square centimeters. There is X-ray evidence of degenerative arthritis and the Veteran has reported difficulties of standing or walking. Procedural Considerations The parties to the October 2011 Joint Motion found fault with the Board's analysis with regard to consideration of separate or higher ratings under DCs 5258 and 5259 and its discussion of the relationship of these diagnostic codes to limitation of motion under DC 5261. Legal Principles and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation 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). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the listed staged rating is proper. As noted, the claim on appeal involves left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy rated under 38 C.F.R. § 4.71a, DC 5261, applicable to limitation of extension of the leg. Diagnostic Codes 5256 through 5263 address disability ratings for the knee and leg. Diagnostic Codes 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The evidence of record does not show that the Veteran has ankylosis of the knee, thus DC 5256 is not for application here. Under Diagnostic Code 5257 for impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Id. at Diagnostic Code 5257. In a September 2012 decision, the Board has already decided that an increased evaluation in excess of 10 percent for recurrent subluxation or instability of the left knee has not been met. Evidence of cartilage that is semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint, calls for a 20 percent evaluation. Id. at Diagnostic Code 5258. Symptomatic removal of semilunar cartilage, however, warrants a 10 percent rating. Id. at Diagnostic Code 5259. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. Id. at Diagnostic Code 5260. The objective evidence of record shows that at no point during the period of appeal has the Veteran shown a limitation of flexion as limited to at least 60 degrees. In fact, at the recent September 2012 VA examination, the Veteran was shown to have 90 degrees in flexion with pain (and no change upon repetitive motion). Under Diagnostic Code 5261, which is the relevant DC for the issues on appeal, a 10 percent disability rating is warranted for extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. Id. at Diagnostic Code 5261. With regard to the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, applicable to limitation of motion, the Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion, as it is the case here. See Johnson v. Brown, 9 Vet. App. 7 (1996). Impairment of the tibia and fibula, warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. Id. at Diagnostic Code 5262. Finally, Diagnostic Code 5263 calls for a 10 percent rating on evidence of acquired genu recurvatum or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. Id. at Diagnostic Code 5263. This DC is not for application here. The Board considered whether a higher disability evaluation may be achieved under another Diagnostic Code. However, the evidence shows no ankylosis of the left knee, or malunion or nonunion of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Codes 5256 and 5262. Therefore, a higher evaluation under Diagnostic Codes 5256 and 5262 is not warranted. Increased Evaluation under DC 5258 prior to September 24, 2012 In this case, multiple diagnostic codes are potentially applicable. Previously, the Board addressed a separate evaluation for instability. Here, there is evidence of post operative residuals of a meniscectomy and limitation of extension. Diagnostic code 5258 contains, as part of the criteria, the term locking. Locking is merely a form of limitation or limited motion. See VAOPGCPREC 9-98. Therefore, diagnostic code 5258 may not be assigned in conjunction with a limitation of motion code as such would violate the rule against pyramiding. It is noted that, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. However, nothing prevents VA from assigning the highest rating based upon the manifestations that are presented. The most probative evidence establishes that prior to September 24, 2012, there was evidence of some limitation of extension, but to the level of a 20 percent evaluation. However, prior to September 24, 2012, there was evidence of post-operative residuals, complaints of locking and effusion. The September 2012 VA examination merely confirmed and clarified the prior evidence rather than establishing a change in severity of the post-operative residuals with respect to locking and effusion. As such, the Board finds that a 20 percent evaluation is warranted for this period of the appeal, but under a modified diagnostic code 5258-5261. The Board notes that under diagnostic code 5258, a 20 percent evaluation is the maximum rating. Increased Evaluation under DC 5261 prior to September 24, 2012 The Board has considered whether an increased evaluation in excess of 10 percent is warranted based on arthritis with limitation of extension for the period of the appeal prior to September 24, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (arthritis), and Diagnostic Code 5261. In this case, X-ray studies confirm the presence of advanced osteoarthritis with extension limited at worst to 10 degrees during this relevant stage of the appeal. As such, the totality of the pertinent evidence supports a continued entitlement to 10 percent evaluation for limitation of motion based on extension limited to 10 degrees for the period prior to September 2012. Impairment of flexion remains not compensable. As previously mentioned, with regard to the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In this case, it is undisputed that the appellant has pain and limited motion. However, an evaluation in excess of 10 percent for based on limitation of extension is not warranted for the period prior to September 24, 2012. The 10 percent evaluation now assigned contemplates limitation of extension to 10 degrees, which was demonstrated at the July 2008 VA examination and also noted in February 2009 in a private treatment record. At no other point during the relevant period of appeal has the Veteran shown a limitation of extension worse than 10 degrees. The Board acknowledges that in order to warrant a higher evaluation, the disorder must approximate the functional equivalent of limitation of extension to 15 degrees. DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, there is no medical evidence or credible lay evidence that extension of the knee is functionally limited to a degree beyond 10 degrees or that flexion of the knee is functionally limited to a degree less than 80. In fact, the most probative evidence establishes that he has significant remaining function as demonstrated by a range of motion from 10 to 80 degrees during this period of the appeal. Although the October 2010 hearing transcript suggests that the appellant had flexion limited around 35 to 40 degrees, the Board has determined that the appellant's testimony is not credible regarding the severity of his left knee-as he is an inconsistent historian, as discussed above-and because the appellant himself acknowledged at the hearing that he did not understand the discussion and questions concerning limitation of motion in terms of "degrees." The appellant was invited to submit additional medical evidence on the severity of his left knee disorder to include a measurement of the range of motion. The record was held open for receipt of such evidence. The appellant submitted additional evidence in January 2011. This evidence was essentially similar to all other evidence of record. As such, the Board finds that the VA examination and SSA disability examination findings that the appellant had flexion to 130 degrees and 120 degrees, respectively, more probative as these measurements were obtained by skilled and neutral medical professionals. Even when we accept the more recent private evidence as accurate, flexion is not functionally restricted to less than 100 degrees. We also note that his report for Social Security purposes that he is able to drive, do yard work, mow and rake leaves, establishes that the retains functional use far better than reported during his hearing. We find that his prior report is far more probative than his testimony. Therefore, a higher evaluation based on limitation of motion is not warranted. The Board does note that a separate evaluation could be assigned for limitation of flexion if he were limited to a compensable degree. Here, the limitation of flexion is non-compensable in degree at any point during the appeal period. To the extent that he has pain on motion, section 4.59 does not distinguish the plane of motion. Furthermore, the credible evidence establishes that flexion is limited to no less than 80 degrees (with pain). Such impairment is much less restrictive than the functional equivalent of 60 degrees required for zero percent or the functional equivalent of 45 degrees for 10 percent. The Board has further considered the appellant's report of severe left knee pain. He is competent to report pain. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). However, the appellant's left knee has not resulted in any functional impairment beyond that contemplated by the current disability evaluation. See 38 C.F.R. §§ 4.40, 4.45. The record shows that the appellant has significantly retained range of knee motion at 10 extension (at worst) to 80 degrees flexion (at worst), and that he has usually been able to treat his pain with over-the-counter pain medication. Although the record shows left knee weakness and the appellant ambulates at times with a cane, he has been able to ambulate without any assistive device, such as a cane or walker, on other occasions. During private treatment in July 2008, the appellant ambulated unassisted with normal gait and balance. In August 2008, the appellant had left knee swelling and was noted to walk with the aid of crutches. During SSA disability evaluation in December 2008, the appellant had an abnormal gait but did not use any assistive or ambulatory device. Also, the record shows that the appellant is able to perform yard work and mow the grass. Although the October 2010 private medical report noted a limp, he retained normal balance and motor function. At the April 2011 examination, the Veteran reported the use of a cane as needed, reported daily pain and flare-ups, and reported that he could not run long distances or stand for long periods of time. However, the Veteran was able to extend to 0 degrees bilaterally with pain on the left, no decrease with repetitive movement. No DeLuca concerns were noted. Therefore, the Board finds that the complaints of pain are adequately addressed by the current disability ratings for arthritis with limitation of motion. To the extent that the appellant asserts that he is entitled to a higher evaluation based upon limitation of motion (DC 5261)prior to September 24, 2012, the Board has considered his pleading. However, although asserting he is worse, his statements are not credible as he is an inconsistent historian. Thus, they have diminished probative value. We conclude that the medical evidence prepared by skilled professionals is more probative of the degree of disability. Furthermore, the Veteran has not submitted any pertinent evidence demonstrating a worsening of limitation of motion after April 2011 and before the last VA examination in September 2012, where the Veteran was shown to have limited extension at 20 degrees. Increased Evaluation in excess of 30 percent from September 24, 2012 (DC 5261) The RO granted an increase from 10 percent to 30 percent for left knee arthritis with limitation of extension and noncompensable scar, effective September 24, 2012, based on the September 2012 VA examination findings. The Board finds that an evaluation in excess of 30 percent is not warranted. The 30 percent evaluation contemplates limitation of extension to 20 degrees. In order to warrant a higher evaluation there would need to be the functional equivalent more closely approximating limitation of extension to 30 degrees. See 38 C.F.R. § 4.7 (and DeLuca factors). The September 2012 VA examination first factually noted that the Veteran's left knee disability has increased in severity with respect to limitation of extension. A 30 percent increased evaluation for the left knee disability was assigned based on the objective findings that left leg extension was limited to 20 degrees. The Veteran was unable to fully extend his left leg, as extension ended at 20 degrees. The examiner noted that there was no objective evidence of painful motion and no change upon repetitive motion testing. Furthermore, the examiner covered function loss and additional limitation of motion, clearly noting that the Veteran does have functional impairment with his left knee as there was pain on movement and less movement than normal in the left knee. Thus, the provisions of 38 C.F.R. § § 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups (DeLuca factors) were considered and an increased based upon such factors is not warranted at this time. Furthermore, there is not lay or medical evidence that establishes that extension is functionally limited beyond 20 degrees. Based on these objective findings along with the Board's findings above, the Veteran's left knee symptomatology and limitation of motion does not more nearly reflect the next higher rating under applicable DC 5261 (40 or 50 percent). Extraschedular Consideration As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of left knee arthritis are fully contemplated by the applicable rating criteria, i.e., DC 5261, applicable to limitation of extension. As discussed above, the claims being decided are specifically limited to whether an increased evaluation is warranted under DC 5261, and that diagnostic code contemplates the relevant symptoms relating to that aspect of the Veteran's left knee disability under consideration, specifically limitation of extension to include DeLuca factors of painful range of motion. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that the left knee disability has caused marked interference with employment, frequent hospitalization, or that the symptoms of this disability have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's left knee disability should be rated at 20 percent under DC 5258 prior to September 24, 2012 and appropriated rated at 30 percent from September 24, 2012 under DC 5261. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). For the reasons discussed in the remand section below, the Board expresses no opinion as to entitlement to a higher or separate rating under any other potentially applicable diagnostic code at this time. ORDER Entitlement to an evaluation of 20 percent before September 24, 2012 for left knee arthritis under Diagnostic Code 5258 is granted. Entitlement to an evaluation in excess of 30 percent from September 24, 2012 for left knee arthritis with limitation of extension associated with post operative residuals of left medial meniscectomy is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs