Citation Nr: 1322678 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 09-02 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the bilateral knees, status-post right knee surgeries with residual scars, and status-post osteotomy of the left knee with scars, rated as 10 percent disabling from May 1, 2006, to April 9, 2010. 2. Entitlement to a rating in excess of 10 percent for right knee DJD, status-post surgery, with residual scars, from April 10, 2010, forward. 3. Entitlement to a rating in excess of 10 percent for right knee DJD, status-post surgery, with instability, from April 10, 2010, forward. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to April 2006, and has additional unverified prior inactive service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. That decision granted service connection for DJD of the knees, status-post right knee surgeries with residual scars and status-post osteotomy of the left knee with scar, and assigned an initial 10 percent rating, effective May 1, 2006. The April 2007 rating decision also granted service connection for hypertension and assigned such an initial noncompensable rating, effective May 1, 2006. The April 2007 rating decision denied service connection for chronic lumbosacral strain and chronic cervical strain. The Veteran disagreed with the ratings assigned to his service-connected disabilities and disagreed with the denial of service connection for his lumbar and cervical strain. He perfected his appeal by a January 2009 Substantive Appeal. By a February 2010 rating decision, the RO in Seattle, Washington, granted service connection for chronic lumbosacral strain; and by a September 2010 rating decision, the RO in Denver, Colorado, granted service connection for cervical spine DJD and degenerative disc disease. The February 2010 and September 2010 actions represent a full grant of the benefits sought as to the Veteran's claims of entitlement to service connection for lumbar and cervical strain. By a September 2010 Supplemental Statement of the Case (SSOC), RO in Denver, Colorado, determined that the Veteran's right and left knee disabilities warranted, effective April 10, 2010, the following: (1) a separate 10 percent rating for right knee DJD, status-post surgery, with residual scar; (2) a separate 10 percent rating for right knee DJD, status-post surgery, with instability; (3) a separate 10 percent rating for left knee DJD, status-post surgery, with residual scar; and (4) a separate 20 percent rating for left knee DJD, status-post surgery, with instability. As the ratings were less than the maximum available ratings, and there remained a period of time prior to April 10, 2010 that such separate ratings were not in effect; the issues remained on appeal, captioned to reflect the RO's September 2010 determination. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2012, the Veteran testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. The Veteran submitted additional evidence at the time of his hearing before the Board, with a waiver of RO consideration of the same. A transcript of the hearing has been associated with the claims file. In October 2012, the Board dismissed per the Veteran's request, the appeal as to the issues of entitlement to an initial rating higher than 10 percent for hypertension; entitlement to a rating in excess of 10 percent for left knee DJD, status-post surgery, with residual scar, from April 10, 2010, forward; and entitlement to a rating in excess of 10 percent for left knee DJD, status-post surgery, with instability, from April 10, 2010, forward. In that decision, the Board also remanded for further development, the issues of entitlement to an initial rating in excess of 10 percent for DJD of the bilateral knees, status-post right knee surgeries with residual scars, and status-post osteotomy of the left knee with scars, rated as 10 percent disabling from May 1, 2006, to April 9, 2010; entitlement to a rating in excess of 10 percent for right knee DJD, status-post surgery, with instability, from April 10, 2010, forward; and entitlement to a rating in excess of 10 percent for right knee DJD, status-post surgery, with residual scars, from April 10, 2010, forward. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the Veteran has not alleged, much less shown, that he is unemployable on account of his service-connected knee disability with residual scars. According to an April 2010 VA examination report the Veteran indicated that he is employed full-time as a salesperson. There is no subsequent evidence to the contrary. Therefore, a TDIU claim as concerning his bilateral knee disability with residual scars has not been inferred. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability). FINDINGS OF FACT 1. From May 1, 2006, to April 9, 2010, the Veteran's service-connected right knee DJD was shown to have been productive of essentially normal range of motion and complaints of pain and swelling, but not recurrent subluxation or lateral instability, ankylosis, malunion of the tibia and fibula, or a dislocated semilunar cartilage. 2. From May 1, 2006, to April 9, 2010, the Veteran's service-connected left knee DJD was shown to have been productive of essentially normal range of motion and complaints of pain and swelling, but not recurrent subluxation or lateral instability, ankylosis, malunion of the tibia and fibula, or a dislocated semilunar cartilage. 3. From April 10, 2010, forward, the Veteran's DJD of the right knee exhibits flexion limited to 105 degrees and extension limited to 15 degrees; the instability in his right knee is no more than mild in nature. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, but not higher, for service-connected DJD of the right knee, status-post right knee surgeries with residual scars, from May 1, 2006, to April 9, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 2. The criteria for a rating of 10 percent, but not higher, for service-connected DJD of the left knee, status post osteotomy with scars, from May 1, 2006, to April 9, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 3. From April 10, 2010, forward, the criteria for a rating of 30 percent, but not higher, for right knee DJD, status-post surgery, with residual scar, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 4. From April 10, 2010, forward, the criteria for a rating in excess of 10 percent for right knee DJD, status-post surgery, with instability, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist obligations. 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 (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). I f, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Notably, the appeal for a higher initial rating for DJD of the knees, status-post surgeries, concerns a "downstream" issue. That is, the Veteran appealed the 10 percent rating that was initially assigned for this disability following the grant of service connection. In Dingess, the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in his April 2007 notice of disagreement (NOD), he took issue with the initial 10 percent rating assigned for his bilateral knee disability, and as mentioned it is presumed he is seeking the highest possible rating or maximum benefit available under the law. Id; see also AB. Therefore, in accordance with 38 U.S.C.A. §§ 5103A , 5104, and 7105(d), the RO/AMC sent him an SOC and SSOCs that, in pertinent part, contained the criteria for establishing his entitlement to a higher rating for his bilateral knee disability with scars and a discussion of the reasons and bases for not assigning a higher rating. See 38 U.S.C.A. § 7105(d)(1). Thereafter, the Denver RO in its September 2010 SSOC granted the separate 10 percent ratings for right knee DJD with instability, and DJD with residual scars from April 10, 2010; notably, these separate ratings stem from the Veteran's initial rating claim for bilateral knee disability. Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist him with his claims, his relevant medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes his service treatment records (STRs) and post-service VA evaluation, treatment, and compensation examination reports, private treatment records, a hearing transcript, and the Veteran's personal statements. In particular, the Board notes that during the May 2012 Board hearing, the Veteran identified outstanding medical evidence from Dr. McCarty. Copies of those records were submitted on the same day by the Veteran's representative. On the representative's letter, there is a handwritten note indicating that the medical evidence submitted is all that the Veteran has. It was requested that the Board proceed with the claim. When this case was remanded by the Board in October 2012, the Board determined that the Veteran needed an updated VA examination because the Veteran's records did not present a thorough description of his current right knee disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of the claimant's disability, fulfillment of the duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses the level of impairment since the previous examination). A VA "Compensation and Pension Exam Inquiry" computerized printout, dated in January 2013, reflects the Veteran's last known address of record. A VA examination was scheduled for February 2013, but the Veteran failed to report. The Veteran was informed in a January 2013 notice letter of the consequences for failing to report for the additional VA examination. The action to be taken in instances where a Veteran fails to report for a VA examination depends on if the examination was scheduled in connection with an initial rating claim or a claim for an increase. An initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b) so where a Veteran fails to report for an examination, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). In contrast, where a Veteran fails to report for an examination scheduled in connection with a claim for an increase, the claim shall be denied. Id. As a threshold matter, when a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a) (2012); Turk, 21 Vet. App. at 569. The Veteran has not asserted that he failed to receive notice of the VA examination. He has not otherwise presented good cause for his failure to appear at the scheduled VA examination. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a). While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). The Board finds no other reason to remand for further examination. Since the increased rating claim on appeal here is an original compensation claim, and the separate ratings subsequently granted for instability and surgical scars on the right knee stem from the initial claim, the Board will decide increased rating claims for right knee disability from April 10, 2010, forward, based on the evidence of record. See 38 C.F.R. § 3.655. The record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. The Board notes further that after the Veteran failed to report to the February 2013 VA examination, the AMC sent an April 2013 SSOC to the Veteran; however, it was returned to sender as undeliverable by the United States Postal Service on April 30, 2013. The AMC then re-sent that SSOC to the Veteran's representative in May 2013. In the cover letter, the AMC advised the Veteran's representative that the most recent remand action had been completed and asked that it submit the enclosed VA Form 1-646 via electronic facsimile within eight days of dispatch of the letter. No timely response was received from the representative and the case was returned to the Board. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). As noted, the Veteran testified before the undersigned VLJ in May 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, during the hearing, the undersigned VLJ identified the issues on appeal and informed the Veteran, in relevant part, that in order to get a higher rating for his disability, he must show that it has increased in severity. The Veteran identified outstanding private evidence relevant to the claim, which as noted was submitted after the hearing. Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim, and to suggest the submission of evidence when such evidence is missing or has been overlooked, has been satisfied. See id. at 496-97. The Veteran has not alleged that there were any deficiencies in the Board hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming that there was such a deficiency, the Board finds that it did not prejudice the Veteran's claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the appellant had any additional information to submit. In this case, given the extensive development of the Veteran's claim discussed above, particularly with respect to obtaining additional evidence and affording an additional examiantion, the Board finds that any deficiency in the May 2012 Board hearing was non-prejudicial. See id. Moreover, as already stated, the Board does not find any deficiency related to the hearing officer's duties under Bryant, and none has been alleged. Factual Background The Veteran's service treatment records show chronic right and left knee problems to include DJD. He underwent a right knee anterior cruciate ligament (ACL) and medial collateral ligament (MCL) repair via arthrotomy in 1987. He had subsequent right knee arthroscopies with meniscal repairs in 1990, 1991, and a right knee arthroscopy with debridement in 2005. In January 2006, the Veteran had a visit with a private physician for a knee evaluation. On examination, he was able to squat to about 90 degrees without too much difficulty. His alignment was slight valgus on the right, and slight varus on the left knee. In a supine position, examination of the right knee revealed fairly good patellar mobility. There was no significant effusion or swelling. His quadriceps had good tone. His range of motion was maintained in an improved arc of 0/30/130 degrees. He had some mild patellofemoral crepitus. Examination of the left knee was unchanged. Lachman's was grade 2B. There was some tenderness across the medial joint line. Range of motion was full. There was good patellar mobility. Otherwise the knee examination was unchanged. There was no significant effusion. Assessment was right knee, status-post extensive debridement for DJD and arthrofibrosis, doing well. Also, the left knee was ACL-deficient and had medial compartment arthrosis and genu varum. A micro fracture of the medial compartment along with a valgus producing high tibial osteotomy was recommended, followed several months later by an ACL reconstruction to ultimately stabilize the left knee. Thus, in February 2006, the Veteran was referred for a left knee consultation by a private physician. He had slight valgus alignment on the right knee, compared to slight varus knee alignment on the left knee. He had no effusion, bilaterally. Range of right knee motion was +3 to 120 degrees, compared to normal range of motion on the left. Examination of the left knee showed a positive Lachman's test with continued pain along the medial joint line. Otherwise, he was stable to varus-valgus stress, as well as posterior drawer. He had a positive pivot shift on the left. Assessment was right knee with tri-compartmental DJD, as well as arthrofibrosis; and left knee chronic ACL deficiency with medial compartment arthrosis and genu varum. The consulting physician recommended a left high tibial osteotomy with micro facture of the medical femoral condyle followed by an ACL reconstruction on the left knee at a later date. The Veteran underwent a left knee osteotomy with micro fracture and high tibial osteotomy in March 2006. The torn ACL was scheduled for repair at a later date. Post-service, in May 2006, the Veteran underwent a VA compensation examination. He reported daily bilateral knee pain and swelling. On examination, range of right knee motion was from zero to 140 degrees. There was no effusion, patellar compression, or tenderness. The medial and lateral collateral ligaments were stable. Lachman's and McMurray's tests were negative. With passive flexion and extension, he had marked crepitus in the right knee. The right knee had a 13 cm scar medial to the patella and a 15 cm scar lateral to the patella, both of which were flat, well-healed, non-tender and non-adherent. Range of left knee motion was from zero to 140 degrees. There was mild crepitus to passive flexion and extension of the left knee. The medial and lateral collateral ligaments were stable. There was no effusion, patellar compression tenderness. The medial and lateral collateral ligaments were stable. Lachman's and McMurray's tests were negative. The left knee had a 5 cm scar over the proximal anterior-lateral tibia. Upon repetitive use testing, he was able to do a deep knee bend from zero to 90 degrees. Diagnoses, in pertinent part, were right knee status-post ACL and MCL reconstruction with subsequent arthroscopies for purposes of debridement with residual scars and DJD, as described; and status-post osteotomy, left knee, with residual scars and ruptured ACL, no instability on clinical examination, but instability by history, and DJD. The examiner also indicated that the Veteran did not exhibit pain, fatigue, weakness, incoordination on repeat testing of his knees, in pertinent part. X-rays showed small patella osteophytes and narrowing and irregularity of the femorotibial articular surfaces in the left knee and severe degenerative changes in the right knee. Private treatment records dated in November 2006 showed trace effusion in the left knee with range of motion from 0 to 135 degrees. There was no instability. A December 2008 treatment record from United Medical Center shows an assessment of chronic knee pain. According to a June 2009 statement, E.C. McCarty, M.D., a private physician, noted the Veteran's complaint of locking and catching in his right knee, as well as significant swelling. On examination, well healed incisions were noted. The Veteran had a 10 degrees flexion contracture with a 1+ effusion. He was ligamentously stable. He was tender to palpation along the joint lines, bilaterally. Dr. McCarty noted x-ray evidence of tri-compartmental DJD of the right knee. Assessment was possible loose body right knee. A magnetic resonance imaging (MRI) scan was ordered. The private MRI report dated in July 2009 shows impressions of: 1. Severe medial and lateral compartmental degenerative arthropathy, with diffuse severe cartilage loss and large osteophytes. Mild to moderate patellofemoral degenerative arthropathy. Numerous intra-articular loose bodies, some of which were calcified and others ossified. Those are more numerous in the posterolateral aspect of the joint, and likely arose from the areas of cartilage loss. 2. Complete tear of the ACL, likely chronic. Intact posterior cruciate and collateral ligaments. 3. Extensive partial tear of the popliteus muscle with retraction inferiorly. The popliteus tension is stretched and thinned and likely partially torn as well. The insertion site is intact. 4. Extensive degenerative nondisplaced tears of the anterior and posterior horns of the medial meniscus and posterior horn of the lateral meniscus. In April 2010, the Veteran had an additional VA examination. His gait was described as normal. Right knee extension was normal. Flexion of the right knee was from -18 degrees to 105 degrees. Extension was limited by -15 degrees. There was evidence of crepitation, clicks and snaps, and grinding in the knee. There was no patellar abnormality. The meniscus was surgically absent. The Veteran was diagnosed with right knee, severe DJD - extremely severe tri-compartmental disease with extensive ossific proliferation; multiple, large ossified loose bodies in the dorsal aspect of the knee joint; and chondrocalinosis; prior internal fixation screw extending transversely from lateral to medial across the supracondylar region; and post-operative scars. The Veteran's knee condition affected his activities of daily living. His bathing and dressing were mildly affected. Recreation, traveling, and shopping were severely affected. He was prevented from exercising or doing sports. Examination also revealed two scars on the Veteran's right knee (lateral and medial sides, and one scar on the left knee (medial inferior). The scars were described as superficial and not painful. There were no signs of skin breakdown, inflammation, edema, or keloid formation. Legal Criteria - Claims for Higher Ratings Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. Where 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). However, applicable here, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). 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). More recently, 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 Mitchell Court 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, 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). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Further, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5010 provides that traumatic arthritis, when substantiated by X-ray findings, is to be evaluated under Diagnostic Code 5003 as degenerative or osteoarthritis, which in turn indicates the disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved - which, here, are Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. According to Diagnostic Code 5003, when the limitation of motion of the specific joint or joints involved is noncompensable (i.e., 0 percent) under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Moreover, under Diagnostic Code 5003, in the absence of limitation of motion, a 10 percent rating is warranted where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A higher 20 percent rating requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. For purposes of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. See 38 C.F.R. § 4.71a. A noncompensable rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71 (2012), Plate II. Additionally, the Board must consider whether the Veteran is entitled to separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg). VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). 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. Id. Under Diagnostic Code 5257, "other" knee impairment - including recurrent subluxation or lateral instability, warrants a 10 percent rating if resulting in slight disability, a 20 percent rating for moderate disability, and a 30 percent rating if it is severe. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semilunar cartilage of the knee with frequent episodes of 'locking,' pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012). Under Diagnostic Code 5259, a 10 percent rating may be assigned for removal of the semilunar cartilage, if symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that, for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Here, the Veteran has been awarded separate 10 percent ratings for arthritis and instability of his right knee, effective from April 10, 2010 forward. 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 decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Analysis a. Bilateral Knee Disability from May 1, 2006, to April 9, 2010 The RO rated the Veteran's right and left knee disabilities together as 10 percent disabling under Diagnostic Code 5010 because there was x-ray evidence of DJD of both knees (two major joints), but without objective clinical evidence of painful or limited motion. On review of the record, the Board finds that the Veteran is entitled to a separate, 10 percent rating for each knee under DC 5010-5261 prior to April 10, 2010. VA examination in May 2006 shows that the Veteran reported daily bilateral knee pain and swelling. He had full (from zero to 140 degrees) range of motion bilaterally. However, he had crepitus on motion of both knees. X-rays showed small patella osteophytes and narrowing and irregularity of the femorotibial articular surfaces in the left knee and severe degenerative changes in the right knee. Based on the x-ray findings and painful motion, a separate 10 percent rating is warranted for each knee. See 38 C.F.R. § 4.59. However, a rating in excess of 10 percent is not warranted for either knee prior to April 10, 2010. Again, the Veteran had full range of motion of the knees from 0 to 140 degrees in May 2006. Upon repetitive use testing, he was able to do a deep knee bend from zero to 90 degrees. The examiner also indicated that the Veteran did not exhibit pain, fatigue, weakness, incoordination on repeat testing of his knees. Private treatment records dated in November 2006 showed range of motion of the left knee from 0 to 135 degrees. According to a June 2009 statement, E.C. McCarty, M.D., the Veteran had a 10 degrees flexion contracture in the right knee. Prior to April 9, 2010, the Veteran did not exhibit limited flexion or extension severe enough to warrant even the assignment of a 0 percent rating under DC 5260 or DC 5261 (i.e., flexion limited to 60 degrees or extension limited to 5 degrees). As explained above, his current 10 percent ratings are assigned based upon arthritis with painful motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. And to assigned two separate ratings for painful motion under DCs 5260 and 5261 would be pyramiding. See 38 C.F.R. § 4.14. The criteria for a separate, compensable rating are also not met under Diagnostic Code 5257 for recurrent subluxation or lateral instability of either knee. Notably, from May 1, 2006, to April 9, 2010, there was no evidence of any instability of the right or left knees, as evidenced during the May 2006 VA examination. Lachman's test was negative during that examination. Additionally, private treatment records dated in November 2006 showed no instability of the left knee and Dr. McCarty in June 2009 noted that the Veteran's right knee was ligamentously stable. As there is medical evidence of residual scars on the Veteran's knees, the Board also considered the diagnostic codes pertaining to scars. During the pendency of his appeal, changes were made to the Schedule for Rating Disabilities for disabilities of the skin, 38 C.F.R. §4.118, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008); see also 38 C.F.R. § 4.118 (2012). Because the regulations as amended in October 2008 apply only to claims received by VA on or after October 23, 2008, or to claims where a Veteran has requested review under the revised criteria, the revised skin regulations will not be applied here, as the Veteran's increased claim was filed before that date and he has not requested review under the revised criteria. See id. Under the relevant rating criteria, scars not of the head, face, or neck may be rated under Diagnostic Codes 7801 to 7804. Diagnostic Code 7801 provides that scars not of the head, face, or neck that are deep or cause limited motion are rated at 40 percent if the area or areas covered exceed 144 square inches or 929 square centimeters, 30 percent if the area of areas covered exceed 72 square inches or 465 square centimeters, 20 percent if the area or areas covered exceed 12 square inches or 77 square centimeters, and 10 percent if the area or areas covered exceed 6 square inches, or 39 square centimeters. A deep scar is one associated with soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2) (2008). Diagnostic Code 7802 provides a maximum 10 percent rating for scars, other than the head, face, or neck, that are superficial and do not cause limited motion if they cover an area or areas of 144 square inches or greater. It should also be noted that scars that are in widely separated areas, such as two or more extremities, must be rated separately. Id., Diagnostic Codes 7801, Note (1); 7802, Note (1) (2008). Diagnostic Code 7803 provides that a maximum 10 percent rating may be granted for a superficial, unstable scar. An unstable scar is one where, for any reason, there is frequent loss of covering skin over the scar. Id., Diagnostic Code 7803, Note (1) (2008). Diagnostic Code 7804 provides that scars that are superficial and painful on examination may be assigned a 10 percent rating. A superficial scar is one not associated with underlying soft tissue damage. Id., Diagnostic Codes 7802, Note (2); 7803, Note (2); 7804, Note (1) (2008). Diagnostic Code 7805 directs VA to rate other scars based on limitation of function of the affected part, as warranted. The residual scars on the Veteran's knees were described by the 2006 VA examiner as superficial, flat, well-healed, non-tender, and non-adherent. The right knee had a 13 cm scar medial to the patella and a 15 cm scar lateral to the patella. The left knee had a 5 cm scar over the proximal anterior-lateral tibia. Diagnostic Code 7801 is not applicable because the scars are not considered deep or cause limited motion. The examiner described the scars as superficial. A separate, compensable rating is not warranted under Diagnostic Codes 7802, 7803, or 7804 because the scars are not shown to cover an area or areas of 144 square inches or greater; are not shown to be unstable; and are not shown to be painful on examination. See 38 C.F.R. § 4.25. Again, the scars were described as well-healed and non-tender, and measured 13 cm, 15 cm, and 5 cm. Also, the evidence does not show that they limit the function of any affected part. Therefore, a higher/separate rating under Diagnostic Code 7805 is also not warranted. The Board notes further that there is no evidence of ankylosis of either knee, or malunion of either tibia or fibula, thus the criteria for a rating in excess of 10 percent for either knee disability under Diagnostic Codes 5256 and 5262 are not met during the applicable time period. Finally, Diagnostic Code 5258 does not provide for a higher rating for either knee as the evidence does not show that the Veteran had a dislocated semilunar cartilage in either knee. Accordingly, the Board finds that the Veteran also does not meet the criteria for a rating in excess of 10 percent under Diagnostic Codes 5256, 5258, and 5262 for either knee disability during the applicable time period. The Board therefore concludes that the Veteran is entitled to a separate 10 percent rating for each knee under DC 5010-5261, but not higher, from May 1, 2006, to April 9, 2010. In arriving at such decision, the Board has considered the Veteran's statements as to the severity of his knee symptoms. Although the Veteran is certainly competent to report observable symptoms such as pain, the Board has ultimately attached greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). b. Right Knee Disability from April 10, 2010, forward The RO assigned a 10 percent rating for DJD of the right knee, status-post surgery, with residual scar, from April 10, 2010, based on painful motion. During the April 2010 VA examination, the Veteran exhibited flexion of the right knee to 105 degrees and extension to 15 and/or 18 degrees. In order to warrant a 20 percent rating under DC 5260, flexion must be limited to 30 degrees. Thus, a higher rating is not warranted under DC 5260. However, the extension of the right knee limited to 15 and/or 18 degrees approximates the criteria for a 30 percent rating under DC 5261. See 38 C.F.R. § 4.7 A rating in excess of 30 percent is not warranted as the Veteran did not demonstrate extension of the right knee limited to 30 degrees and the April 2010 VA examiner stated that there were no additional limitations after three repetitions of range of motion. Further, a separate rating is not warranted under DC 5260 as the Veteran's limited flexion of the right knee did not even meet the criteria for a 0 percent rating under DC 5260 (i.e., flexion limited to 60 degrees) and there were no additional limitations after three repetitions of range of motion. A separate, compensable rating is not warranted under the diagnostic codes that pertain to scars. In April 2010, examination revealed two scars on the Veteran's right knee (lateral and medial sides. The scars were described as superficial and not painful. There were no signs of skin breakdown, inflammation, edema, or keloid formation. Diagnostic Code 7801 is not applicable because the evidence shows that the two right knee scars are not deep and do not cause limited motion. A separate, compensable rating is not warranted under Diagnostic Codes 7802, 7803, or 7804 because the scars are not shown to cover an area or areas of 144 square inches or greater; are not shown to be unstable; and are not shown to be painful on examination. See 38 C.F.R. § 4.25. The two right knee scars measured 15 cm by 3/4 cm and 15 cm by 1 cm. There were also multiple staple sites (each with less than 1/64 cm. squared) and puncture sites (each with an area less than 1/16 cm squared). Again, the scars were described as not painful and there were no signs of skin breakdown. In addition, the residual scars on the Veteran's right knee have not been shown to cause any limitation of function such that a separate rating under DC 7805 is not warranted. As mentioned, the Veteran is also in receipt of a separate 10 percent rating for instability of the right knee, status-post surgery, from April 10, 2010, pursuant to Diagnostic Code 5257 for recurrent subluxation or lateral instability. The record clearly shows that the Veteran since April 2010 has exhibited instability in his right knee, as evidenced during the April 2010 VA examination; however, the VA examiner specifically categorized the instability as mild, in nature. Absent evidence of moderate lateral instability or recurrent subluxation, a rating higher than 10 percent under Diagnostic Code 5257 is not warranted. As the evidence shows that the Veteran's right knee instability is no more than mild, the criteria for a higher rating are not met under Diagnostic Code 5257. Based on the foregoing, the evidence supports the assignment of a 30 percent rating, but not higher, under DC 5010-5261, from April 10, 2010, forward. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 5257, from April 10, 2010, forward. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, irrespective of whether they have been raised by him, his representative, or otherwise by the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). There is no basis to assign higher ratings for the Veteran's right knee disability from April 10, 2010. Evidence from the scheduled February 2013 VA examination could have provided evidence material to the claim, unfortunately however the Veteran did not report. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran's service-connected bilateral knee DJD, right knee instability, and surgical scars. The evidence shows that the Veteran's DJD is primarily productive of painful motion, a manifestation that is contemplated in the applicable rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010. The Veteran's instability in the right knee is primarily productive of a giving way feeling, a manifestation contemplated in the applicable criteria. See 38 C.F.R. § 4.71a, DC 5257. Additionally, the Veteran's knee scars are superficial, well-healed, and do not cause limited function of any affected part. The rating criteria are therefore adequate to evaluate the Veteran's service-connected disabilities evaluated herein. Referral for consideration of any extraschedular ratings is therefore not warranted. ORDER Entitlement to an initial rating of 10 percent, but not higher, for DJD of the right knee, status-post right knee surgeries with residual scars, from May 1, 2006, to April 9, 2010, is granted. Entitlement to an initial rating of 10 percent, but not higher, for DJD of the left knee, status-post osteotomy with scar, from May 1, 2006, to April 9, 2010, is granted. Entitlement to a rating of 30 percent, but not higher, for right knee DJD, status-post surgery, with residuals scar, from April 10, 2010, forward, is granted. Entitlement to a rating in excess of 10 percent for right knee DJD, status-post surgery, with instability, from April 10, 2010, forward, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs