Citation Nr: 1320971 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 05-41 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for status post medial meniscectomy and collateral ligament repair with degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, continued a 20 percent rating for the Veteran's service-connected left knee disability. In August 2008, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing; a copy of the transcript of the hearing is associated with the claims file. The VLJ who conducted the hearing is no longer employed by the Board. The Board recognizes that the law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. In this case, the Veteran was notified that the VLJ who conducted his hearing was no longer employed by the Board in a January 2013 letter. He was offered the opportunity to have a new hearing. He was informed that he had 30 days from the date of the letter to respond; no response has been received. Thus, the Board will proceed with adjudication of the matter on appeal without additional hearing testimony. In February 2009 and August 2011, the Board remanded the matter for additional development. The Board's August 2011 remand included the matters of service connection for a low back disability and for a cervical spine disability. A December 2012 rating decision granted service connection lumbosacral strain, effective May 13, 2004, radiculopathy of the left lower extremity (secondary to the lumbosacral strain), effective October 1, 2011, and spinal stenosis of the cervical spine, effective May 13, 2004. Accordingly, these issues are no longer before the Board. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left knee disability has been manifested by moderate instability; the preponderance of the evidence is against a finding of severe left knee recurrent subluxation or lateral instability. 2. For the period from May 13, 2004 through August 6, 2004, the Veteran' service-connected left knee disability was manifested by x-ray confirmed evidence of arthritis and chronic pain. 3. For the period from August 6, 2004 through April 16, 2005, the Veteran's service-connected left knee disability was manifested by limitation of extension to 15 degrees. 4. For the period from April 16, 2005 through April 10, 2010, the Veteran's service-connected left knee disability was manifested by x-ray confirmed evidence of arthritis. 5. For the period from April 10, 2010 through October 1, 2011, the Veteran's service-connected left knee disability was manifested by limitation of extension to 15 degrees. 6. Since October 1, 2011, the Veteran's service-connected left knee disability has been manifested by x-ray confirmed evidence of arthritis. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for an evaluation in excess of 20 percent for recurrent subluxation or lateral instability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257 (2012). 2. From May 13, 2004 through August 6, 2004, the criteria for entitlement to a separate 10 percent rating for left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2012). 3. For the period from August 6, 2004 through April 16, 2005, the criteria for entitlement to a 20 percent rating, but no higher, for left knee limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5261 (2012). 4. For the period from April 16, 2005 through April 10, 2010, the criteria for entitlement to a separate 10 percent rating for left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2012). 5. For the period from April 10, 2010 through October 1, 2011, the criteria for entitlement to a 20 percent rating, but no higher, for left knee limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5261 (2012). 6. From October 1, 2011, the criteria for entitlement to a separate 10 rating for left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this case, the notice requirements were accomplished in a letter sent in May 2004 prior to the initial rating decision. Additional notice was sent in April 2006, August 2008, and April 2009. Although notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial in this case, and the Veteran has been provided all information needed for a reasonable person to prove the claim. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's available service, VA, and private treatment records (including records from the Social Security Administration) have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations. The Board finds that the VA examination reports, cumulatively (as the April 2005 and April 2010 VA examination reports have already been found by the Board to be in some way inadequate), are adequate for evaluation purposes because the examiners conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, the Board finds that the examination reports, cumulatively, are adequate. Further, the Veteran has not alleged, nor does the record show, that his service-connected left knee disability has worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran was also provided with a hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. However, the VLJ solicited information from the Veteran so that he was able to clarify his contentions. Although the VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file, the Veteran's representative identified additional pertinent evidence that was forthcoming. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). B. Legal Criteria, Factual Background, and Analysis The Veteran seeks a higher rating for his service-connected left knee disability. At the outset, the Board notes that the 20 percent rating currently assigned for the Veteran's left knee disability has been in effect since February 1976, and is "protected" (i.e., may not be reduced). See 38 C.F.R. § 3.951(b). Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The words "slight", "moderate", and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decision are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Limitation of flexion of a leg to 60 degrees warrants a 0 percent rating. A 10 percent rating requires that flexion be limited to 45 degrees. A 20 percent rating requires that flexion be limited to 30 degrees. A 30 percent is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg to 5 degrees warrants a 0 percent rating. A 10 percent rating requires that extension be limited to 10 degrees. A 20 percent rating requires that extension be limited to 15 degrees. A 30 percent rating requires that extension be limited to 20 degrees. A 40 percent rating requires that extension be limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 23-97, the General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14 (2007). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate finding must be based on additional disability. In VAOPGCPREC 9-04, the General Counsel held that separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59,990 (2005). Historically, in November 1973, the Veteran underwent a left medial meniscectomy and medial collateral ligament repair. A March 1976 rating decision granted service connection for status post medial meniscectomy and repair collateral ligament of the left knee, rated 20 percent disabling, effective February 26, 1976. In January 1981, the Veteran underwent medial collateral ligament advancement (Jones procedure), excision of meniscal remnant, and removal of loose bodies. The instant claim for increase was received on May 13, 2004. VA treatment records from May 2004 to April 2005 include May 2004 reports noting the Veteran's complaint of left knee pain; he denied joint swelling or stiffness. X-rays revealed severe degenerative changes associated with calcific tendinitis. An August 6, 2004 report found severe crepitus in the left knee cap and range of motion studies were -15 to 110 degrees. It was noted he should be a candidate in the near future for reconstruction surgery or total knee arthroplasty. September 2004 reports note the Veteran's complaint of his left knee giving out on uneven surfaces without a knee brace. It was also noted he ambulates with a slight limp. Range of motion was very painful. His gait was noted to be nonantalgic, and he was able to stand on his toes. January 2005 reports found left knee varus deformity with medial joint tenderness. There was no effusion, negative drawer sign anterior/posterior, and negative medial/lateral instability with stressing. His gait was noted to be "uneventful". March 2005 reports noted the Veteran will eventually need left knee reconstructive surgery. April 2005 reports noted the Veteran's complaint of his legs giving out and falling. SSA treatment records include a June 2004 report that noted the Veteran wore a left knee brace. Physical examination revealed normal heel to toe gait, no limp, and no assistive device was needed for ambulation. Range of motion of all major joints, except for the lumbar spine, was within normal limits. X-rays revealed moderate degenerative changes involving the knee joint and including the infrapatellar surface, and moderate narrowing of the medial joint space. There was no crepitus, effusion, or instability. The examining physician opined that he felt that the knee brace was not needed. On April 16, 2005 VA examination, the Veteran complained of left knee pain all the time. He also reported his left knee gives way frequently and locks occasionally. He also reported he wears a knee brace and uses a walker only when he expects to walk more than 30 feet. He indicated he has flare-ups with increased physical activity, lasting several hours, and relieved by elevating his knee, icing, and taking ibuprofen (two times per day). On physical examination, the left knee was tender on the medial joint line. There was no effusion. McMurray, varus, valgus, and anterior drawer testing were all negative. Range of motion studies revealed extension to 0 degrees and flexion to 120 degrees, with pain beginning at 90 degrees. There was (minimal) crepitation during flexion. There was no additional limitation in range of motion after repetitive motion testing. There was no weakened movement, fatigability or lack of endurance. X-rays revealed severe degenerative changes associated with calcific tendonitis. The diagnosis was residual left knee degenerative joint disease. VA treatment records from May 2005 to August 2008 include May 2005 reports noting the Veteran's complaint of left knee pain. It was noted that he was using a knee brace. Findings included crepitation and no edema. There was a complaint of pain throughout all active motion, guarding all movement. June 2005 reports note the Veteran's complaint of a tender, swollen knee, and left knee pain. It was noted he was using a walker, and that he was unable to tolerate weight-bearing exercises. July 2005 reports also note the Veteran was using a 4-wheel walker, and that he was unable to tolerate weight-bearing leg exercises. August 2005 reports found good range of motion of the left knee, no varus or valgus laxity, and no effusion. November 2005 reports found on physical examination there was mild swelling of the left knee, mild medial joint tenderness, slightly positive anterior drawer sign, and mild varus and valgus instability with stress testing. December 2005 left knee MRI revealed no evidence of medial collateral or lateral collateral ligament tear; the anterior cruciate ligament was completely torn; the posterior cruciate ligament was intact without tears; the medial meniscus was not visualized, compatible with extensive tear or prior meniscectomy; the lateral meniscus demonstrated a horizontal tear of the anterior horn extending to the undersurface; tricompartmental severe osteoarthritic changes with joint line osteophytes; severe grade IV chondromalacia in the medial compartment and grade II chondromalacia in the lateral compartment. January 2006 reports found on physical examination mild swelling, mild medial joint line tenderness, mild varus and valgus instability, and positive anterior drawer sign. February 2006 reports noted the Veteran's complaint of left knee pain and instability. Physical examination revealed no effusion, positive lachman testing, and positive medial joint line tenderness. Range of motion testing was 0 to 115 degrees. He was diagnosed with end-stage osteoarthritis. March 2006 reports noted the Veteran's complaint of left knee pain and of his knee popping out of place. September 2006 reports noted his complaint that his left knee feels as if it "pops out of place" when he sits in a recliner. On physical examination, there was no effusion and moderate crepitation over the medial compartment. The collateral ligaments were intact, and there was mild tenderness to palpation over the medial compartment. There was also left knee weakness (3/5) on flexion and extension. X-rays revealed the following: narrowing of the medial compartment with osteophytes, eburnation and subchondral cysts; some degenerative changes involving the femoral patellar interface and the lateral compartment. October 2006 reports found left knee weakness (3/5) on flexion and extension, and also noted the Veteran had lateral instability and wore a lateral hinged brace. Range of motion was from -10 to 120 degrees. November 2006 reports note the Veteran's complaint of occasional knee buckling. Range of motion was from -4 to 120 degrees. There was left knee weakness (4/5) on flexion and extension. It was also noted he had continued instability, but with less frequency. May 2007 reports found on physical examination no effusion, valgus pseudolaxity, and no cruciate instability. Range of motion was from 0 to 95 degrees. July 2007 reports noted the Veteran had received injections for left knee pain and that he continued to wear his brace for buckling. Range of motion testing revealed strong extension and active flexion to 113 degrees. There was some crepitus with motion. He had a slightly antalgic gait. February 2008 VA treatment records found left knee crepitus and bony hypertrophy of the knees (left greater than the right). August 2008 records noted that x-rays revealed bicompartmental degenerative changes. At the August 2008 Travel Board hearing, the Veteran testified that he experiences locking of the knee and regular swelling. He also testified that his knee pops out of place while sitting and when extended. His knee goes out sometimes (three times per week) without a brace. He testified he can move his left knee fairly well but that he cannot squat on it. To treat his symptoms, he elevates his knee, ices the knee, and uses a heat pack. He denied any recent surgery. In February 2009, the Board remanded this matter for additional development, to include a new VA examination finding that the April 2005 VA examination was inadequate because it failed to address the level of instability of the left knee. On April 10, 2010 VA examination, the Veteran complained of progressive left knee pain, stiffness and weakness. His joint symptoms were noted to include giving way, pain, stiffness, locking (several times per week), effusions (repeated), severe daily flare-ups, functional limitation on walking, and constant use of a brace/walker. He denied incoordination, episodes of dislocation or subluxation, and instability. On physical examination, the Veteran had an antalgic gait. There was left knee crepitation, medial/lateral joint line tenderness, and subpatellar tenderness. There was no evidence of clicking/snapping, grinding, instability, locking, effusion, dislocation. It was noted that his meniscus was surgically absent. Strength was normal (5/5) on flexion and extension. Range of motion studies revealed extension to 15 degrees and flexion to 130 degrees, with pain on active motion. There was also pain following repetitive motion. It was noted that there were no additional limitations after repetitive range of motion testing. The diagnosis was osteoarthritis, left knee. April 2009 to November 2011 Chiropractic Associates, Inc. private treatment records note the Veteran's complaints of discomfort in the left knee, increased with movement. June 2010 Palmer College of Chiropractic private treatment records note that the Veteran cannot stand completely on his left foot, as his heel stays off the ground. April 2010 to August 2011 VA treatment records include April 2010 left knee x-rays that found severe degenerative change in the medial and patellofemoral articular compartment. September 2010 reports noted the Veteran was ambulating with a walker. January 2011 reports noted he had an abnormal gait and was using a rolling walker with a seat. May 2011 reports noted the Veteran's complaint of sharp left knee pain for two weeks, as well as left knee swelling. X-rays revealed moderate to severe degenerative osteoarthritic changes of the joints associated with chondrocalcinosis. In August 2011, the Board again remanded this matter for additional development, to include a new VA examination finding that the April 2010 VA examination was nonresponsive and inadequate under DeLuca because it failed to provide any specific assessment or explanation of the impairment present in terms of pain on motion, fatigue, incoordination, or loss of strength. On October 1, 2011 VA examination, the Veteran complained of chronic left knee pain (rated a 4 on a scale to 10), stiffness, and swelling. He further reported that his knee pops out of place and that it buckles. He related that he constantly uses a knee brace, regularly uses a walker, and constantly uses a cane. Flare-ups are manifested by swelling and are very painful; they are remedied by staying off his feet for several hours. On physical examination, range of motion studies revealed extension to 0 and flexion to 105 degrees, with pain beginning at 60 degrees. Following repetitive range of motion testing, range of motion remained the same. His functional impairment after repetitive use was manifested by less movement than normal, pain on movement, swelling, deformity, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was also pain on palpation of the left knee. Left knee strength was normal (5/5) on flexion and extension. Lachman testing (anterior instability) was normal. Posterior drawer testing (posterior instability) was normal. Varus/valgus testing (medial-lateral instability) was normal. There was no evidence of recurrent patellar subluxation/dislocation. It was noted that the Veteran does not now have meniscus (semilunar cartilage) condition, but that he had frequent joint locking, effusion and pain. X-rays revealed moderate to severe degenerative osteoarthritic changes of the joints associated with chondrocalcinosis. The diagnoses included torn medial meniscus left knee, torn medial collateral ligament left knee, and degenerative arthritis left knee. Initially, the Board notes that the Veteran's left knee disability has been assigned a 20 percent disability rating under Diagnostic Code 5257 for knee impairment with recurrent subluxation or lateral instability. After a careful review of the lay and medical evidence, the Board concludes that the evidence most closely approximates a finding that the Veteran's left knee instability, overall, reflects no more than moderate instability, and that his current 20 percent evaluation for left knee instability is thus warranted. In reaching this determination, the Board points out that not only does the evidence show that the Veteran has long had to wear a brace to treat his left knee, as well as use of a walker, and more recently on October 2011 VA examination reported he also used a cane, but medical records show consistent reports of the left knee giving way or giving out. In addition, lay statements, including in testimony at the August 2008 Travel Board hearing, report instability. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran's left knee instability more nearly approximates severe residual subluxation or lateral instability. In this regard, the Board notes that while the Veteran has reported instability in treatment records, objective evidence of instability or subluxation has not been found on VA examination in April 2005, April 2010, or October 2011. The Board finds these VA examination reports, cumulatively, to be more significant and persuasive than the Veteran's accounts of instability. Hence, the evidence does not show severe knee subluxation or instability which would warrant the next higher rating of 30 percent under Diagnostic Code 5257. In considering the applicability of other diagnostic codes, the Board notes that for the period from May 13, 2004 (date of receipt of claim) to August 6, 2004, the Veteran is entitled to a separate 10 percent disability rating for degenerative arthritis in his left knee, with painful motion. X-ray evidence in this case, including in May 2004, demonstrates that the Veteran's left knee disability is manifested by arthritis and pain. During this period, there is no evidence of compensable limitation of motion. See June 2004 SSA treatment records that found range of motion of all major joints, except the lumbar spine, was within normal limits. The criteria under Diagnostic Codes 5003 and 5010 apply when limitation of motion would be noncompensable under limitation of motion rating criteria and produces pain. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Based on the evidence from May 13, 2004 to August 6, 2004, the Veteran's left knee disability was noncompensable under Diagnostic Code 5260 and 5261. Applicable regulations provide that, with any form of arthritis, painful motion is an important factor of disability, and it is the intention of VA's rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Therefore, the Board finds that it is appropriate to assign a separate 10 percent evaluation for the Veteran's left knee disability for the period from May 13, 2004 to August 6, 2004, based on painful motion of an arthritic joint. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. For the period from August 6, 2004 to April 16, 2005, the Veteran is entitled to a higher separate 20 percent disability rating based on limitation of extension. An August 6, 2004 VA treatment record found the Veteran had range of motion from -15 to 110 degrees. Under Diagnostic Code 5261, extension limited to 15 degrees warrants a 20 percent rating. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the range of motion testing on the August 6, 2004 VA report is reflective of limitation of extension (rather than hyperextension). However, on April 16, 2005 VA examination, range of motion testing revealed extension was normal (i.e., to 0 degrees). Notably, flexion of the left knee was not shown to be limited to more than 110 degrees during the period from August 6, 2004 to April 2005, and Diagnostic Code 5260 (based on limitation of motion on flexion) would be of no benefit to the Veteran. Accordingly, the Veteran is entitled to a separate rating of 20 percent effective August 6, 2004 through April 16, 2005 based on limitation of extension of the left knee. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. For the period from April 16, 2005 to April 10, 2010, the Veteran is entitled to a separate 10 percent disability rating for degenerative arthritis in his left knee productive of painful motion. From April 16, 2005 to April 10, 2010, flexion of the left knee has not been limited to more than 95 degrees, and extension was, at worst, -10 degrees (i.e., reflective of extension limited to 10 degrees). In this regard, the Board notes that it is aware that under Diagnostic Code 5261 extension limited to 10 degrees warrants a 10 percent rating. However, the criteria under Diagnostic Codes 5003 and 5010 apply when limitation of motion would be noncompensable under limitation of motion rating criteria. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. As the Board is awarding a separate 10 percent disability rating for degenerative arthritis in his left knee for the period from April 16, 2005 to April 10, 2010, the Board finds Diagnostic Code 5261 is of no benefit to the Veteran during this period as it would award the same level of benefit to him (and Diagnostic Code 5261 would only be applicable for the period from October 17, 2006 through November 15, 2006, as a November 15, 2006 VA treatment record found extension was limited to 4 degrees, reflective of noncompensable limitation of extension). Thus, for the sake of clarity, the Board is awarding a separate 10 percent rating for the entire period from April 16, 2005 to April 10, 2010 for degenerative arthritis in his left knee productive of painful motion. Based on the evidence from April 16, 2005 to April 10, 2010, the Veteran's left knee disability was noncompensable (and, at worst, of no additional benefit to the Veteran, as addressed above) under Diagnostic Codes 5260 and 5261, as his range of motion was well beyond the required flexion limited to 60 degrees and extension was limited to no worse than 10 degrees, even when considering DeLuca factors. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Therefore, the Board finds that it is appropriate to assign a separate 10 percent evaluation for the Veteran's left knee disability for the period April 16, 2005 to April 10, 2010 based on painful motion of an arthritic joint. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. For the period from April 10, 2010 to October 1, 2011, the evidence supports a higher separate rating of 20 percent based on limitation of extension. On April 10, 2010 VA examination, extension of the left knee was limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 15 degrees warrants a 20 percent rating. While the April 10, 2010 VA examination has been found by the Board to be nonresponsive to its prior remand instructions and inadequate under DeLuca, to the extent the examination did address DeLuca, extension was not limited to 20 degrees during this period such that the criteria for a higher rating of 30 percent would be warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, the Veteran is entitled to a higher rating of 20 percent effective April 10, 2010 through October 1, 2011. Since October 1, 2011, the Veteran is again entitled to a separate 10 percent disability rating for degenerative arthritis in his left knee productive of painful motion. Flexion of the left knee has not been limited to more than 105 degrees, and extension was normal, even when considering DeLuca factors. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Therefore, the Board finds that it is appropriate to assign a separate 10 percent evaluation for the Veteran's left knee disability since October 1, 2011 based on painful motion of an arthritic joint. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261. The Board has also considered whether it may be appropriate to rate the Veteran's left knee disability under other diagnostic codes. Diagnostic Codes 5256, 5262 and 5263 provide ratings for ankylosis, impairment of tibia and fibula, and genu recurvatum, respectively. All of the medical evidence shows no such impairment. Therefore, these diagnostic codes are not applicable. The Veteran has credibly reported symptoms of pain, locking, and effusion into the left knee joint. However, Diagnostic Code 5258 is inapplicable in this case as there is no evidence of dislocated semilunar cartilage. Consideration of Diagnostic Code 5259 for symptomatic removal of semilunar cartilage is appropriate, however, as the record reflects a history of a medial meniscectomy in November 1973. The Veteran's left knee is also considered "symptomatic" as he has chronic pain and reports functional limitation with walking. However, in this case the Board notes that a separate rating for symptomatic removal of semilunar cartilage is not appropriate. The provisions of 38 C.F.R. § 4.14 prohibit the evaluation of the same disability under various diagnoses, and provide that the evaluation of the same manifestations under different diagnoses is to be avoided. Separate evaluations are, however, available when none of the manifestations of the disabilities at issue overlap. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). On its face, while removal of the semilunar cartilage would not overlap with the already compensated arthritis, the symptomatology of these conditions does overlap. Diagnostic Codes 5003-5010 and 5261 contemplate limitation of motion. See VAOPGCPREC 9-98. The Veteran's pain is also contemplated under the evaluation for arthritis under Diagnostic Codes 5003, 5010. His instability is contemplated under Diagnostic Code 5257. Because the symptomatology of the removal of semilunar cartilage overlaps with that of arthritis and instability, separate evaluations are prohibited under 38 C.F.R. § 4.14. In sum, the Board finds that the weight of the credible evidence demonstrates that the Veteran's left knee disability supports the criteria of a 20 percent disability rating, and not higher, for instability for the entire period under consideration. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The evidence also supports the assignment of a separate 10 percent rating based on painful motion of an arthritic joint for the periods from May 13, 2004 through August 6, 2004, April 16, 2005 through April 10, 2010, and since October 1, 2011. For the periods from August 6, 2004 through April 16, 2005 and April 10, 2010 through October 1, 2011, the Veteran's left knee disability warrants a 20 percent rating, but not higher, for limitation of extension. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5261. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, the rating criteria for the Veteran's service-connected left knee disability reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown. The medical evidence does not show that the Veteran's service-connected left knee disability causes unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule. The rating criteria are therefore adequate to evaluate the Veteran's left knee disability. Consequently, referral for extraschedular consideration is not warranted. Finally, the Court has held that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board notes that the Veteran has already been awarded TDIU, effective May 13, 2004. Accordingly, the matter is not before the Board. ORDER A rating in excess of 20 percent for recurrent subluxation or lateral instability of the left knee is denied. Subject to the laws and regulations governing payment of monetary benefits, a separate 10 percent rating for left knee arthritis is granted from May 13, 2004 through August 6, 2004. Subject to the laws and regulations governing payment of monetary benefits, effective August 6, 2004 through April 16, 2005, a 20 percent rating for limitation of extension of the left knee is granted. Subject to the laws and regulations governing payment of monetary benefits, a separate 10 percent rating for left knee arthritis is granted from April 16, 2005 through April 10, 2010. Subject to the laws and regulations governing payment of monetary benefits, effective April 10, 2010 through October 1, 2011, a 20 percent rating for limitation of extension of the left knee is granted. Subject to the laws and regulations governing payment of monetary benefits, a separate 10 percent rating for left knee arthritis is granted from October 1, 2011. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs