Citation Nr: 1321467 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 96-37 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of a fracture of the right tibia, prior to September 4, 1996, and an evaluation in excess of 30 percent for residuals of a fracture of the right tibia, status post total knee arthroplasty, from November 1, 1997. 2. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to February 1972. This appeal came before the Board of Veterans' Appeals (Board) from a May 1996 rating decision by the Washington, D.C., Regional Office (RO) that continued a 30 percent evaluation for residuals of a fracture of the right tibia with osteoarthritis. During the pendency of the claim, the Veteran underwent a total knee replacement on September 4, 1996. In an October 1997 rating decision, the RO assigned a temporary total 100 percent evaluation for the period of September 4, 1996, through October 31, 1997, due to convalescence required following the total knee replacement. Following the expiration of the 100 percent schedular rating, the RO assigned a 30 percent rating from November 1, 1997. In a July 2002 rating decision, the RO continued the 30 percent evaluation for residuals of a fracture of the right tibia, status post-total knee arthroplasty and granted a separate 10 percent evaluation for osteoarthritis of the right knee, effective October 6, 1995. The Board most recently remanded this case in March 2010 for additional development. The Veteran submitted an informal claim of entitlement to total disability rating based on individual unemployability (TDIU) in January 1997, as well as a VA Form 21-8940 in March 1997, indicating that he had not been employed since June 1994 as a result of his right knee disability. In a May 2008 rating decision, the RO adjudicated the issue of entitlement to TDIU due to all of the Veteran's service-connected disabilities, which resulted in a denial. The Veteran has not appealed such decision, nor has he raised the issue again. Accordingly, the issue of entitlement to TDIU is not before the Board. The Board notes that the issue of entitlement to service connection for pes planus due to the service-connected residuals of a fracture of the right tibia, status post-total knee arthroplasty has been raised by an October 2006 fee-based examination report. This issue has not been adjudicated by the RO. As such, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Prior to September 4, 1996, the Veteran's residuals of a fracture of the right tibia were not manifested by unfavorable ankylosis with flexion between 10 and 20 degrees or worse; any limitation of extension; nonunion of the tibia and fibula requiring a brace, or any lateral instability or recurrent subluxation. 2. From November 1, 1997, the Veteran's residuals of a fracture of the right tibia, status post-total knee arthroplasty have not been manifested by severe painful motion or weakness in the affected extremity; unfavorable ankylosis with flexion between 10 and 20 degrees or worse; any limitation of extension; nonunion of the tibia and fibula requiring a brace, or any lateral instability or recurrent subluxation. 3. Throughout the rating period on appeal, the Veteran's osteoarthritis of the right knee has been manifested by X-ray evidence of degenerative joint disease, painful motion, and limitation of flexion to no worse than 70 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent prior to September 4, 1996, for residuals of a fracture of the right tibia status have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5262 (2012). 2. The criteria for a disability evaluation in excess of 30 percent from November 1, 1997, for residuals of a fracture of the right tibia, status post-total knee arthroplasty have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5055 (2012). 3. The criteria for an initial disability evaluation in excess of 10 percent for osteoarthritis of the right knee right have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice & Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA was enacted subsequent to the initial adjudication of the Veteran's claim. The record reflects that the Veteran was provided all required notice by correspondence sent in April 2004, December 2004, October 2006, and October 2008. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent VA and private outpatient treatment records has been completed. In addition, the Veteran has been afforded appropriate VA examinations. Further, the Board finds that there has been substantial compliance with the September 2001, November 2003, and March 2010 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Regarding outstanding evidence, the Board notes that in November 1996 and January 1997 statements, the Veteran asserted that the claims file was incomplete, because it did not contain his treatment records from Bethesda Naval Hospital dated in October 1996. The record reflects that the RO requested such records in December 1996, October 1997, and February 1997. Subsequent to February 1997, the Bethesda Naval Hospital submitted records pertaining to the Veteran's total right knee replacement surgery dated in September 1996; however, its submission did not include records dated in October 1996. The RO did not make a formal finding of unavailability; however, the Board finds that the lack of such a finding, as well as the fact that the records have not been associated with the claims file, does not prejudice the Veteran because he was in receipt of a temporary total 100 percent rating for his right knee disability during the period of September 4, 1996, to November 1, 1997. The Veteran has not identified any additional outstanding evidence that should be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board also is satisfied that the originating agency has complied with its duty to assist the Veteran in the development of the facts pertinent to these claims. Accordingly, the Board will address the merits of the claim. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities, except as noted below. Historically, the Veteran sustained a compound fracture of the right tibia during service, as a result of a car accident. In a June 1972 rating decision, the RO granted service connection for residuals of a fracture of the right tibia; a 30 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5262, effective February 25, 1972, the day following separation from active service. The Veteran submitted the instant claim for an increased rating in October 1995. A March 1996 fee-based examination report notes that the Veteran reported that he experienced right knee pain. He denied a history of locking, giving way, or swelling of the right knee joint. He reported that he used a brace and took anti-inflammatory medication. Examination revealed range of motion of the right knee from zero degrees extension to 80 degrees flexion. There was evidence of genu varus of the right knee. There was mild atrophy of the right quadriceps compared to the left quadriceps. There was no evidence of swelling or instability. Varus-valgus and Lachman tests were negative. The Veteran's patella was not symptomatic. Rotation tests for meniscus problems were negative. X-rays revealed a varus deformity of the proximal tibial plateau with moderate degenerative changes of the joint. The examiner noted that the Veteran had an obvious deformity of his right knee as a result of the tibial fracture he sustained in 1971. The examiner further noted that the Veteran's symptoms were the result of the tibio-femoral joint malalignment. The examiner opined that the Veteran needed a tibial osteotomy to correct the deformity, as well as a knee joint replacement in the future. VA outpatient treatment records dated in June 1996 and July 1996 note diagnoses of right knee degenerative joint disease. A September 1996 preoperative examination report from Bethesda Naval Hospital notes that the Veteran reported limited range of motion, as well as pain on an eight of ten level due to his right knee disability. Examination revealed range of motion of the right knee from zero degrees extension to 70 degrees flexion. X-rays revealed severe tibial femoral and patellofemoral arthrosis; depression of the medial tibial plateau; and an obvious varus deformity. The assessment was post-traumatic arthritis of the right knee. The examiner noted that the Veteran would undergo a right total knee arthroplasty. A September 1996 surgical report from Bethesda Naval Hospital notes the Veteran underwent right total knee arthroplasty. A subsequent September 1996 surgical report from Bethesda Naval Hospital notes the Veteran underwent a skin necrosis of his right medial tibial area. In an October 1997 rating decision, the RO assigned a temporary total 100 percent evaluation due to treatment for the service-connected residuals of a fracture of the right tibia, status post-total knee arthroplasty which required convalescence pursuant to 38 C.F.R. § 4.30, effective September 4, 1996, through October 31, 1997. The RO assigned a 30 percent rating from November 1, 1997, ultimately pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. VA outpatient treatment records dated in 1997 and 1998 note the Veteran's history of right total knee replacement surgery; however, they do not show that the Veteran sought treatment for his service-connected right knee disabilities. A May 2002 fee-based examination report notes that the Veteran reported mild discomfort of his right knee. He reported that he took anti-inflammatory medication regularly with improvement of his symptoms. He reported that he used a cane to walk as a result of his right ankle pain. Examination revealed range of motion of the right knee from zero degrees extension to 80 degrees flexion without pain. There was no evidence of swelling. Stability and patella tracking were normal. There was a surgical scar; the examiner indicated it was in good condition. There was evidence of mild right thigh muscular atrophy compared to the left thigh. There was normal alignment of the lower limbs. X-rays of the right knee taken in April 2002 during an office visit with the examiner revealed a total knee replacement with the femoral, tibial, and patellar components in normal position, without signs of loosening. Upon review of the claims file, the examiner indicated that there were no operative or postoperative complications noted. The examiner noted that the total knee replacement surgery (normally) limited the Veteran's ability to go up and down the stairs, as well as to use public transportation; however, he also noted that such limited motion of the right knee was painless and stable. The examiner remarked that the Veteran's ankle pain seemed to limit more of the Veteran's physical activities. In a July 2002 rating decision, the RO granted a separate 10 percent evaluation for right knee osteoarthritis pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010, effective October 6, 1995, the date of claim for an increased rating. In the same decision, the RO continued the Veteran's 30 percent rating for residuals of a fracture of the right tibia, status post total knee arthroplasty ultimately pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5055. An October 2006 fee-based examination report notes that the Veteran reported that he underwent a total right knee replacement in September 1996 with a satisfactory outcome. He reported that he experienced right ankle pain which resulted in the use a cane when he walked for more than 15 minutes. Examination of the right knee revealed range of motion from zero degrees extension to 90 degrees flexion. The examiner noted that the Veteran's range of motion was painless. The examiner commented that the Veteran's total right knee replacement resulted in a satisfactory outcome. The examiner noted that the Veteran's ankle pain limited his functional capacity. VA outpatient treatment records dated from 2001 to 2006 note the Veteran's histories of right total knee replacement surgery but do not show that the Veteran sought treatment for his service-connected right knee disabilities. A February 2012 fee-based examination report notes that the Veteran reported that he did not have flare-ups that impacted the function of his right knee or leg. Examination of the right knee revealed range of motion from zero degrees extension to 90 degrees flexion with no objective evidence of painful motion. Upon repetitive testing, the Veteran's right knee range of motion was from zero degrees extension to 90 degrees flexion with no objective evidence of painful motion. The examiner noted that the Veteran did not have additional limitation of range of motion, functional loss, or impairment of the right knee following repetition. There was no evidence of pain on palpation for the joint line or soft tissue. Muscle strength of the right was five of five in extension and flexion. There was no evidence of instability, subluxation, or dislocation. There was no evidence of shin splints, stress fracture, compartment syndrome, genu recurvatum, or leg length discrepancy. There was no evidence of a meniscal condition. Upon review of the claims file, the examiner diagnosed status post right tibial fracture (1971), status post right knee total replacement surgery (September 1996), and degenerative or traumatic arthritis of the right knee. The examiner noted that the Veteran used a cane for his right ankle condition, not his knee disability. The examiner concluded that the Veteran's right knee disability did not impact his ability to work. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5262 provides a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. A 30 percent rating is provided for malunion of the tibia and fibula with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5055 provides criteria for evaluating impairment arising from the prosthetic replacement of a knee joint. For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent evaluation is warranted if the ankylosis is in flexion between 10 and 20 degrees. A 50 percent evaluation is warranted if the ankylosis is in flexion between 20 and 45 degrees. A 60 percent evaluation is warranted where there is ankylosis of the knee, in an extremely unfavorable position, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The removal of semilunar cartilage warrants a 10 percent rating if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5263, a genu recurvatum, an acquired, traumatic deformity with demonstrated weakness and insecurity in weight bearing warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5263. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel has also held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September, 2004). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis As discussed above, prior to September 4, 1996, the Veteran's residuals of a fracture of the right tibia, were rated as 30 percent disabling under DC 5262. Since November 1, 1997, the Veteran's residuals of a fracture of the right tibia, status post-total knee arthroplasty have been rated as 30 percent disabling under Diagnostic Code 5055. Throughout the rating period on appeal, the Veteran's osteoarthritis of the right knee has been rated as 10 percent disabling under Diagnostic Code 5010. Upon review of the lay and medical evidence, the Board finds that the impairment of the right tibia does not warrant more than the assigned rating of 30 percent rating under Diagnostic Code 5262. Although the Veteran reported pain in his right knee during the March 1996 and September 1996 examinations, and has used a brace, the X-ray evidence shows tibio-femoral joint malalignment (malunion). There is no evidence of nonunion of the tibia and fibula requiring a brace; thus, the Veteran does not warrant the next higher 40 percent evaluation under Diagnostic Code 5262 at any time during the period of the claim. Similarly, the Board finds that the impairment of the right tibia does not warrant more than the currently assigned rating of 30 percent rating under Diagnostic Code 5055, since November 1, 1997. Although the Veteran has reported pain in his right knee during this rating period and has used a cane at various times to ambulate since his total knee replacement surgery, the evidence further shows that the Veteran denied flare-ups on his most recent examination in 2012, did not report any right knee pain on examination in October 2006, and only reported mild discomfort of his right knee during the May 2002 examination. Further, the record does not demonstrate any complaints of weakness of the right knee. Although mild muscular atrophy of the right thigh compared to the left thigh was noted on examination in May 2002, the most recent examination in 2012 demonstrates that there was no objective evidence of weakness of the Veteran's right knee on muscle testing. Moreover, the Veteran's use of a cane was attributed to his non-service connected ankle disability by the February 2012 examiner, and the Veteran has consistently asserted that he utilized a cane as a result of his ankle pain. Accordingly, the Veteran's symptoms do not more nearly reflect severe painful motion or weakness in the affected extremity as is required for the next higher 60 percent evaluation under Diagnostic Code 5055 since November 1, 1997. The Board also finds that the osteoarthritis of the right knee does not warrant more than the currently assigned initial 10 percent rating under Diagnostic Code 5010. As discussed below, the Veteran does not have compensable limitation of flexion or any limitation of extension during the rating period on appeal. Significantly, during the pendency of the appeal, the RO inappropriately assigned this separate 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5010, effective October 6, 1995, noting the Veteran's painful limitation of motion demonstrated during treatment in 1996 and 1995. As above, a 10 percent evaluation under Diagnostic Code 5010 is warranted when there is X-ray evidence of degenerative arthritis and noncompensable painful limitation of motion. As such, the basis of the separate rating is in significant part, the Veteran's limitation of motion. However, such limitation of motion is not separate and distinct symptomatology from the bases of the 30 percent evaluations assigned for the right knee, both prior to September 4, 1996, and since November 1, 1997 under 38 C.F.R. §4.71a, Diagnostic Codes 5262 and 5055, respectively. See Esteban, 6 Vet. App. 259, 262 (1994). Thus, the separate 10 percent rating under Diagnostic Code 5010 is prohibited under 38 C.F.R. § 4.14. The Board, however, notes that the Veteran's right knee disability could be evaluated under the limitation of motion codes, namely Diagnostic Codes 5260 and 5261, versus Diagnostic Codes 5262 and Diagnostic Code 5055. In this regard, the Board notes that throughout the rating period on appeal, the Veteran did not exhibit any limitation of extension. Therefore, even if the disability were assigned the maximum evaluation authorized for limitation of flexion, 30 percent, it would not be to the Veteran's advantage to rate the disability on the basis of limitation of motion. The Board has also considered whether the Veteran's right knee disability warrants a higher evaluation under any other provision of the rating schedule during the entire period on appeal. However, neither the lay nor the medical evidence reflects unfavorable ankylosis with flexion between 10 and 20 degrees or worse, thus, Diagnostic Code 5256 is not applicable. The other Diagnostic Codes pertaining to the knee and leg, namely Diagnostic Codes 5258 and 5259, do not provide for evaluations in excess of 30 percent and the impairment contemplated by those Diagnostic Codes is not separate and distinct from that contemplated by the assigned rating of 30 percent under Diagnostic Codes 5262 and 5055. The Board notes that a genu varus deformity of the right knee was documented on examination in March 1996. As above, Diagnostic Code 5263 provides for a 10 percent evaluation for a genu recurvatum, an acquired, traumatic deformity with demonstrated weakness and insecurity in weight bearing. This manifestation of the Veteran's disability, however, does not warrant a separate compensable evaluation, as such deformity with weakness of the knee joint and insecurity in weight bearing, is contemplated by the assigned 30 percent evaluation for malunion of the tibia and fibula with marked knee disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262, for the period prior to September 4, 1996. The assignment of a separate compensable rating under Diagnostic Code 5263 would constitute "pyramiding" under the provisions of 38 C.F.R. § 4.14. Thus, the Veteran does not warrant a separate compensable evaluation on the basis of a genu varus deformity of the right knee prior to September 4, 1996. The Board has also considered whether a separate compensable evaluation on the basis of recurrent subluxation or lateral instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is warranted during the rating period on appeal. In this regard, there is no objective evidence of subluxation or instability noted on examination in March 1996, September 1996, May 2002, or February 2012, and the Veteran has not asserted that he experienced any subluxation or instability. Therefore, the requirements for a separate compensable evaluation on the basis of recurrent subluxation or lateral instability have not been met for the Veteran's right knee at any time during the rating period on appeal. The Board accepts that the Veteran experiences right knee pain, as well as right quadriceps atrophy. However, the Board finds that the pain, atrophy, and weakness are no more than slight or mild and, to this extent, such symptoms are contemplated the assigned ratings The evidence shows that the Veteran has only mild atrophy of the right quadriceps compared to the left quadriceps on examination in March 1996 and May 2002, and most recently, no atrophy or weakness on examination in February 2012. It is further noted that the Veteran has significantly retained range of motion in his right knee both prior to and following his total knee replacement surgery, and a 30 percent rating is the highest rating available based on limitation of flexion, and the Veteran does not have any compensable limitation of extension of the right knee at any time during the appeal period. Moreover, following repetitive range of motion testing, the February 2012 examiner noted that the Veteran did not have any additional limitation in range of motion, functional loss, or impairment of the right knee. While the Veteran is competent to report that his right knee disabilities are worse than presently evaluated, whether a disability is sufficient to meet the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination. Although the Veteran believes he meets the criteria for higher disability ratings, his complaints and the medical findings do not meet the schedular requirements for evaluations higher than the assigned 30 percent and 10 percent for his right knee, both prior to and following the total knee replacement surgery and throughout the rating period on appeal, respectively, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Therefore, the Board finds that increased evaluations are not warranted at any time during the rating period on appeal based on the application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, 8 Vet. App. 202 (1995). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether the Veteran warrants a separate compensable evaluation based on his residual scar located on the anterior right tibia as a result of his service-connected residuals of a fracture of the right tibia, status post-total knee arthroplasty disability. The record, however, does not demonstrate that the criteria for a separate compensable evaluation for such scar have been met. The March 1996 examination report notes that the Veteran's scar is located on the right anterior tibia. The May 2002 examination report includes the examiner's comment that the Veteran's surgical scar was in good condition. The most recent February 2012 examination report notes that the Veteran does not have any scars related to his service-connected right knee disabilities. There is no objective evidence of tenderness, adherence to the underlying tissues, inflammation, edema, ulceration, or keloid formation. Moreover, the Veteran has not contended that his scar caused any pain, limitation of motion, or limitation of function. As such, a separate compensable evaluation for the Veteran's scar of the anterior tibia is not warranted. Finally, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In the case at hand, the manifestations of the disabilities are contemplated by the schedular criteria. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching the foregoing determinations, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 30 percent for residuals of a fracture of the right tibia, prior to September 4, 1996, and an evaluation in excess of 30 percent for residuals of a fracture of the right tibia, status post total knee arthroplasty, from November 1, 1997, is denied. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the right knee is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs