Citation Nr: 1320168 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 06-31 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for right elbow degenerative joint disease (right elbow disability). 2. Entitlement to an initial disability rating in excess of 10 percent for right knee chondromalacia (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1980 to May 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In March 2011 and October 2012, the Board remanded these claims for further development. As discussed below, the development requested has been completed, and the claims are now appropriate for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In March 2007, it appears that the Veteran submitted a statement indicating he disagreed with the effective date of the grant of service connection for his right elbow, right knee, and back disabilities (but this is not clear). The issues of entitlement to earlier effective dates for the grant of service connection for right elbow, right knee, and back disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action (if needed). FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran's service-connected right elbow disability has been manifested by flexion to no worse than 100 degrees, extension to no worse than 30 degrees, pronation to 75 degrees, supination to 80 degrees, objective evidence of pain following repetitive motion but no additional loss of motion after repetition, and no ankylosis. 2. Throughout the rating period on appeal, the Veteran's service-connected right knee disability was manifested by flexion to no worse than 120 degrees with pain beginning at 120 degrees, extension to no worse than zero degrees, no additional loss of motion after repetitive use, complaints of intermittent pain and popping, and x-ray findings of degenerative changes. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 20 percent for degenerative joint disease of the right elbow have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5206 (2012). 2. The criteria for an initial disability evaluation in excess of 10 percent for right knee chondromalacia have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5014 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's elbow disability has been evaluated under Diagnostic Code 5206, found in the Schedule of Ratings for the Musculoskeletal System under 38 C.F.R. § 4.71a. Under Diagnostic Code 5206, which addresses limitation of flexion of the forearm, 0, 10, 20, 30, 40, and 50 percent evaluations are assigned where flexion of the forearm of the major extremity is limited to 110, 100, 90, 70, 55, and 45 degrees, respectively. 38 C.F.R. § 4.71a. The Veteran's right knee disability has been evaluated under Diagnostic Code 5014, also found in the Schedule of Ratings for the Musculoskeletal System under 38 C.F.R. § 4.71a. Disabilities evaluated under this particular diagnostic code are to be rated on limitation of motion of the affected parts, as arthritis, degenerative (Diagnostic Code 5003). Other diagnostic codes relevant to the knee disability are 5003, 5010, and 5257-5261. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under Diagnostic Codes 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. 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 the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 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. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must 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. See 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Right Elbow Initial Disability Rating Analysis In the present case, service connection for the right elbow disability was granted in the December 2005 rating decision that is the subject of this appeal. An initial 20 percent evaluation was assigned, effective from October 12, 2004, the date the Veteran's prior claim for service connection was received. The Veteran, including through his representative, contends that that his right elbow disability symptoms, which include constant pain, frequent swelling, locking, difficulty lifting, and limited motion, warrant an initial rating higher than 20 percent. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 20 percent for service-connected degenerative joint disease of the right elbow for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected right elbow disability did not manifest flexion limited to 70 degrees or less, as required for an evaluation in excess of 20 percent under Diagnostic Code 5206. 38 C.F.R. § 4.71a. A December 2004 x-ray study of the right elbow revealed significant degenerative joint disease, with joint space narrowing and prominent spur formation. Based on this x-ray study, a private physician informed the Veteran that the cartilage in the elbow was wearing out and that he needed to see an orthopedist. The Veteran was afforded a VA examination in November 2005. He reported chronic pain and limited range of motion. Specifically, he stated that in the past six or seven years, he had experienced increasing pain and decreased extension of the elbow. He also experienced occasional swelling and pain at rest. The pain at rest awakened him at night on occasion. He experienced swelling and soreness with repetitive use. He stated it was difficult to do any type of housework or yard work because he could not extend the elbow and had pain with resisted use. He reported increased limitation with repetitive use of the elbow due to pain. He denied any incapacitating flare-ups of elbow pain. He further stated the elbow did not affect his usual occupation, as his job was sedentary. He did not use any assistive devices or braces for the elbow. On physical examination in November 2005, there was no swelling, but there was some tenderness to palpation over the elbow joint at the radial head. Active and passive range of motion was from 30 to 100 degrees. There was slight discomfort with maximum flexion at 100 degrees. Motor strength was 5 out of 5, but the Veteran noted pain at the elbow with resisted flexion, as well as pronation and supination of the forearm and hand. The Veteran reported increased pain upon repetitive range of motion testing, but there was no weakness, loss of motion, fatigability, or incoordination, providing evidence against this claim. The VA examiner assessed chronic right elbow pain and loss of range of motion with x-ray findings of degenerative joint disease. The Veteran also underwent a private orthopedic evaluation of the elbow in November 2005. He reported pain and swelling in the elbow. There was crepitus with range of motion and pain on extension. Range of motion was recorded from 30 to 100 degrees (identical to the November 2005 VA examiner's findings). The right upper extremity was intact neurovascularly. X-ray studies revealed significant osteoarthritic changes about the elbow in the olecranon joint as well as the radial capitular joint. The orthopedist recommended an aggressive course of physical therapy. However, this report only providers more evidence against this claim beyond 20 percent. A January 2006 private treatment note indicates the Veteran reported that his elbow pain was improved. He continued to attend therapy. The Veteran was afforded another VA examination in February 2008 for the purpose of evaluating his individual unemployability claim. He reported daily, constant pain in the elbow. He stated the pain was sharp and rated it at a 6 out of 10 in severity. The pain increased to a 9 out of 10 after overuse. He reported frequent swelling and difficulty lifting. He stated that sometimes the elbow locked and would not straighten. He did not use any braces or splints, and reported no additional limitations with flare-ups. In terms of daily activities, the elbow interfered with lifting and straightening his arm. On physical examination in February 2008, there was no deformity, swelling, or palpable tenderness. Flexion was to 135 degrees with mild pain, and he lacked between 2 and 5 degrees of extension. Supination was from 0 to 80 degrees without pain, and pronation was from 0 to 75 degrees without pain. Active range of motion did not produce any weakness, fatigue, or incoordination. There was no additional loss of range of motion after three repetitions of motion. An x-ray study revealed severe degenerative arthritic change throughout the right elbow with narrowing of the joint space between the distal humerus and the proximal ulna with sclerosis of the articular surface of the proximal ulna, as well as hypertrophic change anteriorly and posteriorly. The articular surface of the head of the radius was fairly well-preserved, and there were no soft tissue abnormalities. A March 2010 VA treatment note indicates there was a lack of full extension of the right elbow, although it does not specify to what degree, and atrophy in the right trapezius and scapular muscles. The Veteran had a private right elbow evaluation in November 2012. He reported chronic pain and recurrent swelling with limited range of motion. He stated his activities of daily living were limited, and he rated his pain at a level of 7 out of 10 in severity. The private physician observed good motion of the elbow, but did not record any specific measurements. A December 2012 occupational therapy note indicates the Veteran did not have any elbow pain at the time. The Veteran was afforded another VA examination in February 2013. He reported pain at levels between 3 and 10 out of 10 in the elbow, and swelling with activity. He also reported painful clocking and popping of the elbow, but no locking. He stated he experienced stiffness of the elbow and limited motion. He could not fully extend or flex the elbow. He sometimes used a sling. He stated his activities of daily living were not limited, but he had to use his left hand for shaving or brushing his teeth. He had pain with walking due to the motion of the arms swinging. He reported flare-ups with certain activities, causing increased pain and swelling. He denied any incapacitating episodes. On physical examination in February 2013, flexion was to 110 degrees, with objective evidence of pain at 110 degrees. Extension was to 20 degrees with pain at 20 degrees. After three repetitions, flexion remained at 110 degrees and extension remained at 20 degrees. Thus, there was no additional limitation of range of motion of the elbow following repetitive use testing. However, there was some functional loss after repetitive use in terms of less movement than normal and pain on movement. There was tenderness to palpation of the elbow. Muscle strength was 5 out of 5 on flexion and extension. There was no ankylosis, flail joint, joint fracture, or impairment of supination or pronation. There was no swelling, but there was popping with range of motion testing. Sensation was intact. The VA examiner noted that when the Veteran worked, he had elbow pain and limited use of the right arm, and that he limited his lifting and carrying. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 20 percent for the right elbow disability is not warranted for any period, as the requirements of flexion limited to 70 degrees or less have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Flexion, at worst, has been limited to 100 degrees, even after repetition, which does not even support the current evaluation. In reaching its finding that the evidence did not show flexion to 70 degrees or less for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 20 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the objective evidence of pain on range of motion testing at the 2013 VA examination, the Veteran's report of constant, daily pain and frequent swelling, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2013 VA examiner noted objective evidence of pain after repetitive motion, but that motion was not additionally limited after repetition; thus, even if the pain on flexion is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. Indeed, none of the flexion measurements of 100, 110, and 135 degrees recorded during the initial rating period on appeal even meet the minimum criteria for the currently assigned 20 percent rating under Diagnostic Code 5206. 38 C.F.R. § 4.71a. Therefore, the Veteran's pain, including after repetitive motion, has been taken into account, and, indeed, serves as the only basis for the currently assigned 20 percent evaluation. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's statement that his pain prevented him from performing household tasks. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion limited to 70 degrees or less) such as to enable a finding that the disability picture more nearly approximates the next-higher, 30 percent, evaluation under Diagnostic Code 5206. 38 C.F.R. § 4.71a. While the Board understands the Veteran's central concern that he has a debilitating right elbow disability, it is important for the Veteran to understand that a 20 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a 20 percent reduction in the Veteran's ability to function due to his right elbow pain. The critical question in this case, however, is whether the problems the Veteran has cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. As discussed above, without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. As mentioned above, the criteria for the currently-assigned 20 percent evaluation under Diagnostic Code 5206 is flexion limited to 90 degrees or less. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 20 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 30 percent, rating category - flexion to 70 degrees or less - even when taking into account additional loss of motion due to DeLuca factors. Even with such factors, the evidence does not show even the minimum criteria for the currently assigned 20 percent rating. For these reasons, the Board finds that an initial disability rating in excess of 20 percent is not warranted for any period. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, Diagnostic Code 5205 does not apply, as the evidence does not demonstrate ankylosis of the elbow. Diagnostic Code 5206 does not allow for a higher initial evaluation, as extension has not been limited to 90 degrees or more. Diagnostic Code 5208 does not allow for a higher evaluation, as extension has not been limited to 45 degrees (extension, at worst, was measured at 30 degrees at the November 2005 VA examination). Diagnostic Code 5209 does not apply, as there is no evidence of a joint fracture of the elbow. Diagnostic Code 5210 does not apply, as there is no nonunion of the radius and ulna. Diagnostic Codes 5211 and 5212 do not apply, as there is no impairment of the ulna or radius, respectively, manifested by malunion or nonunion. Finally, Diagnostic Code 5213 does not apply, as there is no impairment of supination or pronation. In addition, the Board has considered Diagnostic Code 5010, which addresses traumatic arthritis. Diagnostic Code 5010 instructs traumatic arthritis to be rated as degenerative arthritis, which is address by Diagnostic Code 5003. In this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, neither Diagnostic Code 5010 nor 5003 allow for a higher evaluation. There are no other applicable codes available for consideration. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 20 percent for degenerative joint disease of the right elbow for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Right Knee Initial Disability Rating Analysis In the December 2005 rating decision on appeal, the Veteran was awarded a 10 percent initial disability rating for service-connected chondromalacia of the right knee, effective from October 12, 2004 (the date his prior claim for service connection was received), under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5014. The Veteran contends that his right knee disability warrants a higher initial rating due to symptoms including pain, tenderness, crepitus, and use of a cane to ambulate. The Board will begin by reviewing the evidence most pertinent to the initial rating period on appeal. The Veteran was afforded a VA examination in November 2005. He reported intermittent swelling and popping, as well as soreness with weight bearing and walking. He stated the knee was stable and did not lock. He said he could walk about half a mile, and standing time was limited to ten minutes, but mostly by his back pain. He reported increased limitation with repetitive use such as standing and walking. He said the knee pain did not interfere with activities of daily living, and he did not miss any work due to knee pain. On physical examination in November 2005, there was no effusion. There was generalized tenderness to palpation and movement of the patella, and to palpation of the medial and lateral joint lines. There was no tenderness of the popliteal space. The knee was stable to varus and valgus stress. Anterior drawer and Lachman's tests were negative. There was pain free range of motion from 0 to 130 degrees. Upon repetitive range of motion testing, there was increased pain behind the patella and mild crepitus of the patella; however, there was no loss of motion, weakness, fatigability, or incoordination. An x-ray showed no evidence of fracture or dislocation and the joint compartments appeared intact. The VA examiner assessed right knee pain primarily of the patellofemoral joint (chondromalacia patella). Private physical therapy notes from July, September, and December 2006 indicate range of motion from 0 to 135 degrees with no pain. The Veteran was afforded another VA examination in February 2008. He reported intermittent pain, stating that it was not daily or constant. He said the knee popped frequently and occasionally swelled. He did not use a brace, but sometimes used a cane. He denied any additional limitation with flare-ups. In terms of daily activities, the knee pain interfered with walking in that the knee popped after walking one block or standing for five to ten minutes. The VA examiner noted that x-ray studies from November 2005 were normal. On physical examination, there were no deformities, swelling, or palpable tenderness. There was full extension of the knee without pain, and flexion was to 125 degrees without pain. There was no laxity or instability present. Active range of motion did not produce fatigue or incoordination, and there was no additional loss of range of motion after three repetitive movements. The VA examiner assessed a right knee sprain. At a February 2013 VA examination, the Veteran reported pain at levels between 3 and 8 out of 10, located mostly along the medial right knee. The VA examiner noted that x-ray studies showed degenerative joint disease. The Veteran reported painful popping and stiffness, but no locking. He also reported swelling of the knee with activity. There was no redness, but he reported occasional heat. He reported increased pain with stairs, and used a pullover sleeve for the right knee. His walking was limited to a half block due to pain in both knees, and standing was limited to five minutes. He stated his activities of daily living were not limited by the knees. He reported flare-ups of pain depending on the activity such as prolonged standing or walking; these flare-ups resulted in increased pain and swelling. He denied any incapacitating episodes. On physical examination in February 2013, flexion was to 120 degrees, with pain at 120 degrees. Extension was to 0 degrees with no objective evidence of painful motion. After repetitive range of motion testing, flexion remained at 120 degrees and extension at 0 degrees. There was no additional limitation of motion following repetitive use testing. Functional loss due to right knee pain included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was tenderness to palpation. Muscle strength was at 5 out of 5 on both flexion and extension. Lachman's test was negative, as was a posterior drawer test. The knee was stable to varus and valgus stress. There was no evidence or history of recurrent subluxation or dislocation. There were no meniscal conditions, and the Veteran had not had a joint replacement on the right side. On the question of whether the Veteran is entitled to a higher initial disability rating for his right knee disability, the Board notes that arthritis and limitation of motion, including motion limited by pain and other orthopedic factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca are to be rated as part of one disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5003. Instability of the knee, which does not include painful limitation of the knee as part of the rating criteria, is a distinct disability. See VAOPGCPREC 23-97 and 9-98. With further regard to the question of whether the Veteran is entitled to an evaluation in excess of 10 percent for the right knee chondromalacia based on the evidence of record relevant to the rating period on appeal, outlined above, the chondromalacia of the knee is rated at 10 percent under Diagnostic Code 5014, which is to be evaluated under Diagnostic Code 5003. Diagnostic Code 5003 rates degenerative arthritis, including painful motion associated with the arthritis, even when there is noncompensable limitation of motion. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5014 for right knee chondromalacia, including the pain and limitation of motion the Veteran has reported. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Here, neither the flexion nor extension measurements of the right knee meet the minimum criteria for compensable evaluations under Diagnostic Codes 5260 or 5261. Flexion has been no worse than 120 degrees, and extension no worse than 0 degrees (or unlimited extension). Further, because there is only one major joint involved (the knee), and there are no incapacitating exacerbations, a 10 percent rating is the maximum available schedular disability rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a. As the right knee chondromalacia is already rated 10 percent disabling, and a 10 percent rating is the maximum rating provided for arthritis of a major joint under Diagnostic Code 5003, a rating in excess of 10 percent is not possible under Diagnostic Code 5003. The Board has also considered whether any other diagnostic code would allow for an increased rating for the Veteran's right knee chondromalacia, manifested by limitation of motion, pain, or other orthopedic factors such as weakness or fatigability. Diagnostic Code 5260 contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 60, 45, 30, and 15 degrees, disability ratings of 0, 10, 20, and 30 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had flexion to no worse than 120 degrees throughout the rating period on appeal. However, as noted above, painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The 2013 VA examiner noted that the Veteran's pain began at 120 degrees of flexion. Moreover, there was no additional loss of motion after repetition due to pain, weakness, or other factors. Thus, even taking the Veteran's pain into account, as the criteria for even a noncompensable disability rating under Diagnostic Code 5260 (limitation of flexion to 60 degrees) 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 an increased rating in excess of 10 percent under Diagnostic Code 5260 for right knee chondromalacia for any period. 38 C.F.R. § 4.71a. The Board has considered whether any other diagnostic codes would allow for an evaluation higher than 10 percent. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 5, 10, 15, 20, 30 and 45 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 extension to no worse than zero degrees throughout the rating period on appeal, taking additional limitation due to pain after repetition into account (which in this case, was none). In addition, no other evidence of record shows extension measured to less than zero degrees. As the criteria for even a noncompensable disability rating under Diagnostic Code 5261 (limitation of extension to 5 degrees) 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 an increased rating in excess of 10 percent under Diagnostic Code 5261 for right knee chondromalacia for any period. 38 C.F.R. § 4.71a. 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 there is no evidence of 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. The Board has also considered whether there are any diagnostic codes related to knee instability that would allow for a rating in excess of 10 percent for the right knee disability. Under Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The Veteran has consistently reported a popping sensation in his knee throughout the rating period on appeal. However, he has not reported any episodes of locking or giving way. Moreover, no ligamentous laxity has been found on examination at any time during the rating period on appeal, and ligamentous testing has been normal, with consistently negative Lachman's, anterior drawer, posterior drawer, varus, and valgus stress tests. Thus, in light of the consistently negative findings on ligament testing, any knee instability, if present, cannot be characterized as being more than slight in severity. Therefore, Diagnostic Code 5257 does not allow for a rating in excess of 10 percent. Diagnostic Code 5259 contemplates symptomatic removal of semilunar cartilage (meniscus). A 10 percent rating is the maximum (and only) available rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a. Moreover, the evidence does not demonstrate that the Veteran has undergone such a procedure. Thus, Diagnostic Code 5259 does not allow for an evaluation in excess of 10 percent for the Veteran's right knee chondromalacia. Further, Diagnostic Code 5258, which contemplates dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint, does not apply. The 2013 VA examiner specifically stated there was no dislocation or removal of semilunar cartilage. Moreover, no other evidence has suggested the presence of a meniscal tear or dislocation. Thus, Diagnostic Code 5258 does not allow for an evaluation in excess of 10 percent for the Veteran's right knee chondromalacia. 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. The Board has also considered whether any separate ratings are available based on the evidence. In so doing, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. In the present case, the evidence does not establish loss of flexion or extension to a even a noncompensable degree; thus, assignment of separate evaluations for limitation of flexion and extension is not appropriate here. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98 (when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain). In this case, as discussed above, no ligamentous laxity has been found on examination at any time during the rating period on appeal. Thus, although there is x-ray evidence of arthritis, there is no instability of the right knee, and, hence, no basis for separate evaluations under Diagnostic Codes 5003 and 5257. Again, while the Board understands the Veteran's central concern that he has a debilitating right knee disability, it is important for the Veteran to understand that a 10 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a 10 percent reduction in the Veteran's ability to function due to his right knee pain. The critical question in this case, however, is whether the problems the Veteran has cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. As discussed above, without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 10 percent for right knee chondromalacia for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence 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 In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's elbow and knee disabilities. 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 Veteran's right elbow disability has manifested in arthritis, painful movement, and limited motion. The schedular criteria for rating the right elbow disability (38 C.F.R. § 4.71a, Diagnostic Code 5206) specifically provide for ratings based on the presence of painful arthritis and limitations of motion of the elbow (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the right elbow to the rating schedule, the degree of disability of the right elbow throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The Veteran's knee disability has manifested in arthritis and limitation of motion, including due to pain. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for such noncompensable limitation of motion due to painful arthritis (DC 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited due to orthopedic factors such as pain, guarding of movement, and fatigability (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the knee to the rating schedule, the degree of disability of the knee throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. 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 effect on his daily life. In the absence of exceptional factors associated with the elbow and knee disabilities, 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). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Because the current appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for elbow and knee disabilities, 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 and 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 claims). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service treatment records, post-service private and VA treatment records, and other records identified by the Veteran. As noted above, the Board remanded these claims for further development in October 2012. Specifically, the Board directed that any additional private and VA treatment records be obtained and associated with the claims file, and that the Veteran be afforded a new VA examination to determine the severity of his elbow and knee disabilities. Subsequently, VA contacted the Veteran and requested release forms for specific providers previously identified by the Veteran as well as the names and addresses of any additional providers from whom he may have received treatment. The Veteran did not provide any new release forms or names of new providers. Further, updated treatment records were associated with the Veteran's virtual VA file, and he was afforded new VA examinations with regard to his elbow and knee disabilities. Thus, the Board's October 2012 remand directives have been satisfied, and no further development is necessary. The Veteran has been afforded an adequate examination on the issue of rating the elbow and knee disabilities. VA provided the Veteran with examinations in November 2005, February 2008, and February 2013. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include review of x-ray studies. Conclusions reached and diagnoses given were consistent with the examination reports, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. Therefore, the Veteran has been afforded an adequate examination on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has 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 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial disability rating in excess of 20 percent for right elbow degenerative joint disease is denied. An initial disability rating in excess of 10 percent for right knee chondromalacia is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs