Citation Nr: 1321783 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-24 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Evaluation of left knee osteoarthritis with chondromalacia of the patella, evaluated as noncompensable from March 1, 2008 and as 10 percent from April 1, 2009. 2. Evaluation of left knee lateral subluxation, evaluated as 10 percent from March 1, 2008 and as 20 percent from February 27, 2012. 3. Evaluation of right knee osteoarthritis with partial patellar tendon tear, evaluated as noncompensable from March 1, 2008 and as 10 percent from April 1, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 1989 and from June 1989 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claims folder was subsequently transferred to the RO in Denver, Colorado. In October 2012, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). At that time, the Veteran also presented testimony regarding the issues of entitlement to service connection for hepatitis B and for shortness of breath and irregular heartbeat. The VLJ indicated he would need to determine whether the Board had jurisdiction of those issues. A review of the claims folder shows that in March 2008, the RO denied entitlement to service connection for residuals of hepatitis B and for shortness of breath and irregular heartbeat. The Veteran disagreed with the decision and a statement of the case was furnished on these issues in May 2009. The statement of the case also addressed the evaluations assigned for lumbar spine, left knee, and right knee disabilities. The Veteran subsequently submitted a VA Form 9 and specifically indicated that he only wanted to appeal the issues pertaining to his lumbar spine, left knee, and right knee. The Veteran did not perfect an appeal with regard to the issues of entitlement to service connection for hepatitis B and for shortness of breath and irregular heartbeat. These claims were referred to the RO in January 2013; however no action has been taken. Therefore, the Board does not have jurisdiction over them and they are again referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The Virtual VA claims file has been reviewed. In January 2013, in pertinent part, the Board remanded all of the claims listed on the title page to the RO, via the Appeals Management Center (AMC) for additional development. For the reasons stated below, with regard to the claims being denied, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Throughout the entire rating period on appeal, the left knee osteoarthritis with chondromalacia of the patella most closely approximates limitation of motion objectively confirmed by painful motion but not ankylosis, dislocated semilunar cartilage, limitation of flexion to no worse than 90 degrees, limitation of extension to -5 degrees, or impairment of the tibia and fibula. 2. Left knee lateral subluxation mostly closely approximated slight subluxation during the rating period prior to February 27, 2012. 3. Left knee lateral subluxation mostly closely approximated moderate lateral subluxation during the rating period since February 27, 2012. 4. Throughout the entire rating period on appeal, the right knee osteoarthritis with partial patellar tendon tear most closely approximates limitation of motion objectively confirmed by painful motion but not ankylosis, dislocated semilunar cartilage, limitation of flexion to no worse than 85 degrees, limitation of extension to -5 degrees, or impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. Prior to April 1, 2009, left knee osteoarthritis with chondromalacia of the patella was 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). 2. Left knee osteoarthritis with chondromalacia of the patella is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). 2. The criteria for a rating in excess of 10 percent rating for left knee subluxation have not been met for the period prior to February 27, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5257 (2012). 3. The criteria for a rating in excess of 20 percent rating for left knee subluxation have not been met for the period since February 27, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5257 (2012). 4. Prior to April 1, 2009, right knee osteoarthritis with partial patellar tendon tear was 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). 5. Right knee osteoarthritis with partial patellar tendon tear is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in October 2006, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment and the Veteran's own statements in support of his claims. In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his claims for increased ratings for his left and right knee disabilities, in 2007, 2009, 2012, and 2013. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected disabilities. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2013 VA examinations, including no assertion by the Veteran of worsening since the last VA examinations. The Veteran here does not assert that his disabilities have worsened since the April 2013 VA examination; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disabilities on appeal, does not suggest that the disabilities on appeal have worsened since the last VA examination and VA treatment records in 2013. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. During the hearing, the Veterans Law Judge clarified the issues, addressed whether there was outstanding evidence and explained the concept of rating disabilities of the knees. Based upon testimony, additional development was accomplished. The actions of the Judge supplement VCAA and complies with 38 C.F.R. § 3.103. Legal Criteria for Increased Disability Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). More generally, 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. In addition, 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Disability Ratings Factual Background In March 2008, the RO granted entitlement to service connection for residuals of a left knee injury with degenerative changes and for residuals of a right knee injury. Both knees were assigned noncompensable evaluations from March 1, 2008. In June 2009, the descriptions of the knee disabilities were revised and a 10 percent evaluation was assigned for left knee osteoarthritis with chondromalacia patella and patellar subluxation from April 1, 2009. A 10 percent evaluation was also assigned for right knee osteoarthritis with partial patellar tendon tear from April 1, 2009. In June 2012, the RO granted entitlement to a separate compensable evaluation for left knee lateral subluxation patella and assigned a 10 percent evaluation from March 1, 2008 and a 20 percent evaluation from February 27, 2012. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257). The Veteran underwent several VA examinations during the appeal period. At the Veteran's October 2007 VA examination, in connection with his initial claim for service connection, the Veteran complained of bilateral knee pain. Upon examination, the Veteran had normal posture and gait. There was no limp, redness, swelling, or tenderness of either knee. A September 2007 x-ray showed bilateral spurring of the patellar ligaments and tibial spine. A June 2006 x-ray was noted as showing medial femoral condyle and inferior patellar chondromalacia with proximal patellar tendinitis. Range of motion testing showed left knee flexion to 125 degrees (active) and 135 degrees (passive), with complaints of pain at 127 degrees; right knee flexion was to 120 degrees (active) and 130 degrees (passive), with complaints of pain at 125 degrees. VA treatment records dated March 2008 through May 2013 show that the Veteran was treated for complaints of bilateral knee pain. An August 2008 MRI report indicated that the Veteran had a mildly subluxed and tilted patella of the left knee. He was issued a knee brace in February 2010. The Veteran was afforded a VA examination in April 2009. According to the report, Veteran complained of bilateral knee pain, instability, stiffness, and weakness, as well as decreased motion, swelling, and tenderness. He reported that he had no assistive devices other than a brace and orthotics for his shoes. Examination showed antalgic gait. He had crepitus, tenderness, pain, guarding of movement, grinding, and subpatellar tenderness of both knees; there was no indication of clicks, instability, or meniscus abnormality. Range of motion testing showed left knee flexion to 90 degrees and extension to -5 degrees. Right knee flexion was to 85 degrees and extension was to -5 degrees. There was no evidence of ankylosis and Lachman's and McMurray's tests were negative. There was abnormal tracking of the right knee and tenderness of the left knee. X-rays showed bilateral bone proliferative changes of the patellar ligament compatible with degenerative changes. The Veteran was afforded another VA examination was in February 2012. At that time, the Veteran complained of pain, swelling, and popping. He denied surgical treatment and meniscal conditions; he reported experiencing shin splints. He reported that he did not use any assistive devices other than a right knee brace; he described the use of the brace as occasional. Range of motion of the right knee was from 0 degrees extension to 90 degrees of flexion. Painful motion began at 80 degrees and following repetitive motion, flexion was limited to 70 degrees. Range of motion of the left knee was from 0 degrees extension to 95 degrees of flexion. Painful motion began at 80 degrees and following repetitive motion, flexion was limited to 80 degrees. Extension was full bilaterally. Repetitive motion produced additional limitation of motion, pain, and excess fatigability, but did not cause incoordination, swelling, deformity, atrophy, weakness, functional loss, or disturbance of locomotion. Stability testing was normal bilaterally and the Veteran had moderate subluxation of the left knee; there was recurrent patellar subluxation/dislocation. Diagnoses were right knee patellar tendinitis, partial tear of the distal patellar tendon insertion, degenerative joint disease and left knee chondromalacia patella, lateral subluxation patella, and degenerative joint disease. At the October 2012 videoconference hearing, the Veteran reported that he had pain and swelling in both knees and he testified as to a general worsening in his range of motion. When asked to describe his range of motion, he reported that he could not move his left leg and knee to 90 degrees. He stated he would probably have to stop at 40 degrees. After four or five repetitions, he estimated his range of motion would be about 30 degrees. Regarding his right knee and leg, he testified that his right knee was probably a little worse than the left. He estimated range of motion as 30 degrees. The Veteran was most recently afforded a VA examination in April 2013. The report indicates that the Veteran complained of pain, peripatellar swelling without effusion, and stiffness; the Veteran denied experiencing instability. The Veteran reported occasional use of a knee brace and daily use of ibuprofen for pain. Range of motion testing showed right knee flexion to 110 degrees and left knee flexion to 105 degrees; he had full extension bilaterally. Upon repetitive motion testing, he had less movement than normal and pain on movement bilaterally. Stability testing was normal, for anterior drawer, posterior drawer, and medial-lateral tests. Muscle strength was full and both knees were stable; there was evidence of slight recurrent patellar subluxation/dislocation of the right knee. There was tenderness to palpation, but no swelling, deformity, weakness, excess fatigability, functional loss, instability, or incoordination. Diagnoses were bilateral degenerative joint disease manifested as chondral defect without instability, left subluxed patella, and bilateral iliotibial band syndrome. The VA examiner noted that there was no significant change in range of motion upon repeat testing and resistance, and there is no additional loss of range of motion for either knee due to painful motion, weakness, impaired endurance, incoordination, instability. Right and Left Knee Osteoarthritis The Veteran's right knee osteoarthritis and left knee osteoarthritis are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5260. Each knee is rated as noncompensable prior to April 1, 2009, and as 10 percent disabling thereafter. Under DC 5010, degenerative or traumatic arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. The appropriate diagnostic codes for the knee joint are DCs 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under DC 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). Prior to April 1, 2009 After a review of the lay and medical evidence, the Board finds that the Veteran's right knee osteoarthritis with partial patellar tendon tear and left knee osteoarthritis with chondromalacia of the patella, for the rating period prior to April 1, 2009, most nearly approximates the criteria for a 10 percent disability evaluation per knee under Diagnostic Codes 5010-5260. Although the Veteran did not have flexion limited to 45 degrees or extension limited to 10 degrees, the October 2007 VA examination report, as well as VA treatment records, clearly indicate that the Veteran experienced painful motion of the right and left knees. At the October 2007 VA examination, the Veteran complained of pain and had flexion to 120 degrees on the right and 125 degrees on the left, and without complaints of stiffness, swelling, heat, or redness. The Board is left with a clear and unmistakable impression that prior to April 1, 2009, there was evidence of periarticular/articular pathology and painful motion. Section 4.59 clearly demands at least the minimum compensable evaluation for the joint. Here, a 10 percent evaluation is warranted for each joint. Evaluation during the entire appeal period For the rating period prior to and since April 1, 2009, the Board finds that the Veteran's right knee osteoarthritis with partial patellar tendon tear and left knee osteoarthritis with chondromalacia of the patella are each no more than 10 percent disabling. The current evaluation contemplates painful motion. It is also consistent with limitation of flexion to 45 degrees. A higher evaluation may be assigned if there is the functional equivalent of limitation of flexion to 30 degrees. A separate evacuation may be assigned if there is compensable limitation of extension, instability or subluxation. The Veteran does not have flexion of either knee limited to 30 degrees as required for a 20 percent rating (Diagnostic Code 5260). See 38 C.F.R. § 4.7 (2012). The range of motion exceeds these respective limits, despite his chronic right and left knee pain. Flexion was to 85 degrees on the right and to 90 degrees on the left at the April 2009 VA examination. At the February 2012 VA examination, he had flexion to 90 degrees on the right and 95 degrees on the left; his April 2013 examination demonstrated flexion to 110 degrees on the right and 105 degrees on the left. VA considers "full" range of motion for the knee to be from 0 to 140 degrees (full extension to full flexion). See 38 C.F.R. § 4.71, Plate II. There is no objective clinical indication that he has additional functional impairment, above and beyond the 10-percent level, for either knee, which would support an even higher rating. In this regard, the Board points out that the Veteran's VA examination reports were repeatedly negative for objective evidence of incoordination, weakness, abnormal movement, or deformity. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. There was also no evidence of effusion, redness, or instability, although the Veteran reports experiencing pain and fatigability. Likewise, there was no objective evidence of decreased motor strength and x-rays did not show a fracture or dislocation. His pain did not significantly inhibit his range of motion or otherwise create functional limitations. Rather, when tested his remaining functional use was greater than 45 degrees of flexion. There also is no objective clinical indication that he has other symptoms (e.g., premature or excess fatigability, weakness, incoordination) which otherwise result in any additional functional limitation in his right and left knees to a degree or extent that would support a higher rating. In particular, the April 2009 and February 2012 VA examiners noted that there was a mild increase in pain upon repetitive use, but found that there was no additional weakness, fatigability, incoordination, lack of endurance, or additional loss of motion. As a result, his current 10 percent rating for osteoarthritis of each knee adequately compensates him for the extent of his pain, including insofar as its resulting effect on his range of motion. The Board is fully aware that the appellant is competent to report his range of motion and at what point he is limited. However, his testimony that he is limited to 30 degrees of flexion is wildly inconsistent with the objective evidence and inconsistent with this Judge's observation of the appellant as he walked into the room, sat in a chair and exited the room. His testimony is far less probative than the evidence prepared by skilled professionals and is not credible. The Board has considered whether a separate evaluation is warranted for limitation of extension. However, his testimony establishes that he does have full extension. Furthermore, the medical evidence has established that he has either full extension or a non-compensable degree of limitation of extension. Here, neither the lay nor medical evidence establishes that a separate evaluation is warranted for limitation of extension. DCs 5256 and 5262 provide for higher ratings for ankylosis and impairment of the tibia and fibula, respectively. DC 5258 provides for a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Although the Veteran has pain of the right and left knees, he does not have impairment of his tibia and fibula, dislocated semilunar cartilage, or ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262. Left Knee Subluxation The Veteran's left knee lateral subluxation is rated as 10 percent disabling prior to February 27, 2012 and 20 percent disabling thereafter, pursuant to 38 U.S.C.A. § 4.71a, Diagnostic Code (DC) 5257. According to DC 5257, a 10 percent rating is warranted for slight subluxation or lateral instability, a 20 percent rating is warranted for moderate subluxation or lateral instability and a 30 percent rating is warranted for severe subluxation or lateral instability. After a review of all the evidence, the Board finds that for the rating period prior to February 27, 2012, the Veteran's service-connected left knee lateral subluxation more nearly approximate the criteria for a 10 percent disability evaluation under Diagnostic Code 5257. The Board finds that the Veteran does not have more than slight lateral subluxation. The April 2009 VA examination report indicates that an August 2008 MRI showed subluxation and tilting of the patella, described as mild. The Veteran first reported use of a knee brace in April 2009, and VA treatment records indicate that one was provided by VA in 2010. However, he does not use any other assistive devices and the medical evidence prior to February 27, 2012 does not suggest the existence of moderate subluxation or lateral instability. At the April 2009 VA examination, the Veteran did not demonstrate laxity or instability upon physical examination; medial and lateral collateral ligaments were stable to testing. The Board acknowledges that the record includes the Veteran's report of instability, particularly at the April 2009 VA examination, but points out that there was no indication that the left knee was not stable to stress. Moreover, the Board notes that VA treatment records do not demonstrate that the Veteran reported instability or subluxation of the left knee; treatment notes and the April 2009 VA examination report did not show locking, incoordination, weakness, or dislocation. The evidence generally reflects no more than mild instability prior to February 27, 2012. In this case, the Board finds the objective evidence is more probative than the Veteran's complaints at the VA examinations, and the Board finds the Veteran's left knee disability is productive of no more than slight instability during the rating period prior to February 27, 2012. After a review of the evidence for the period since February 27, 2012, the Board finds that for the entire rating period on appeal the Veteran's service-connected left knee lateral subluxation more nearly approximate the criteria for a 20 percent disability evaluation under Diagnostic Code 5257. The Board finds that the Veteran does not have more than moderate subluxation. At the February 2012 VA examination, the Veteran reported using a brace occasionally. However, the February 2012 VA examination report noted the Veteran experiences recurrent patellar subluxation/dislocation, described as moderate. At the April 2013 VA examination, the Veteran had tenderness to palpation, but without swelling; he had negative anterior and posterior drawer testing. Moreover, the Board notes that VA treatment records and the 2012 and 2013 examination reports indicate that the use of a brace was no more than occasional. The evidence generally reflects of no more than moderate instability, and the Veteran's gait is consistently found to be antalgic. In this case, the Board finds the objective evidence is more probative than the Veteran's complaints at the VA examinations, and the Board finds the Veteran's left knee lateral subluxation is productive of no more than moderate symptoms during the rating period. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's right and left knee disabilities are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms of subluxation, limitation of motion, and pain, each of which were addressed in the VA examinations and treatment records and which provided the basis for the disability ratings that have been granted. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. None of the VA examiners indicated that the Veteran lost any time from work due to his right and left knee disabilities. Therefore, referral for consideration of an extraschedular rating for the Veteran's right and left knee disabilities is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with left knee osteoarthritis, left knee lateral subluxation, and right knee osteoarthritis, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating of 10 percent is granted for left knee osteoarthritis with chondromalacia of the patella for the period prior to April 1, 2009, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis with chondromalacia of the patella is denied. Entitlement to a disability rating in excess of 10 percent for left knee lateral subluxation for the period prior to February 27, 2012 is denied. Entitlement to a disability rating in excess of 20 percent for left knee lateral subluxation for the period since February 27, 2012 is denied. A disability rating of 10 percent for right knee osteoarthritis with partial patellar tendon tear is granted for the period prior to April 1, 2009, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis with partial patellar tendon tear is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs