Citation Nr: 1323668 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 06-07 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The claim was most recently before the Board in April 2013. An April 2013 Board decision denied a disability evaluation in excess of 10 percent prior to May 4, 2004, for right knee meniscectomy with arthritis and granted a 30 percent rating for right knee instability, for the period from September 29, 2002 through May 3, 2004. The issue on appeal, entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005, was remanded for additional development. In October 2008 the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board. Consequently, in March 2012, the Board advised the Veteran by letter that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. 38 C.F.R. § 20.707 (West 2002). The letter indicated that, if the Veteran did not respond within 30 days from the date of the letter, the Board would assume that the Veteran did not want another hearing and would proceed accordingly. As the Veteran did not respond to this letter, no new hearing will be provided in this matter. Additional evidence was received from the Veteran in July 2013. A waiver of AOJ consideration of that evidence was included. The Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2012). A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the Veteran is already in receipt of TDIU. FINDINGS OF FACT 1. For the period from July 1, 2005 through May 15, 2013, the Veteran's status post total right knee replacement did not result in chronic residuals consisting of severe painful motion or weakness, ankylosis, limitation extension beyond 20 degrees, limitation of flexion beyond 100 degrees, or malunion or non-union of the tibia and fibula. 2. From May 16, 2013 the Veteran's right knee disability has approximated limitation of 30 degrees of extension; however, the disability has not resulted in chronic residuals consisting of severe painful motion or weakness, a compensable loss of flexion, or malunion or non-union of the tibia and fibula. 3. The Veteran's right knee disability has resulted in no more than slight lateral instability and no recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for status post total right knee replacement from July 1, 2005 through May 15, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5055, 5256, 5260-5262 (2012). 2. The criteria for a rating of 40 percent for status post total right knee replacement from May 16, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5055, 5256, 5260-5262 (2012). 3. The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in May 2004, April 206, September 2008, February 2009, and May 2013 of the criteria for assigning ratings for the knee, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected right knee disability has on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As for VA's duty to assist, the Veteran's service treatment records are associated with the claims file, as are VA and private medical records. Records from the Social Security Administration (SSA) are on file as well. The Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations described the Veteran's disability on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability. VA's duty to assist in obtaining a VA examination has been met. During the October 2008 Board hearing, to assist the Veteran, the VLJ asked questions to help direct the Veteran's testimony, and specifically asked the Veteran for details concerning nature and history of his right knee disability and medications taken to alleviate right knee pain. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that there has been substantial compliance with its April 2013 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in May 2013 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal and contained answers to specific questions enumerated in the April 2013 remand. Further, VA medical records available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's electronic Virtual VA folder. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Increased Ratings-Laws and Regulations Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Factual Background The Veteran's claim for an increased rating for service-connected right knee disability was received on September 29, 2003. Prior to the June 2004 rating decision, the Veteran's service-connected right knee disability had been rated 10 percent disabling, using Diagnostic Code 5261, for right knee meniscectomy with arthritis, and as 10 percent disabling, using Diagnostic Code 5257, for slight right knee instability. The June 2004 rating decision continued the 10 percent rating under Diagnostic Code 5257, but recharacterized the right knee meniscectomy with arthritis as status post total right knee replacement, rated using Diagnostic Code 5055. The RO assigned a 100 percent evaluation as of May 4, 2004 and a 30 percent evaluation as of July 1, 2005. An April 2013 Board decision granted a 30 percent rating for right knee instability, for the period from September 29, 2002 through May 3, 2004. In an October 2005 letter the Veteran's private physician noted that the Veteran had difficulty going up stairs and difficulty getting up after sitting down on account of his May 2004 right total knee replacement. At a December 2005 VA examination the Veteran stated that he had some improvement in pain relief since his total knee replacement but still had some ongoing discomfort. Examination revealed right knee extension to 10 degrees, and flexion to 120 degrees. There was a mild effusion, some anterior laxity, and no true problem with medial instability or rotational instability. The examiner noted moderate effects on activities of daily living, some discomfort, and no true flare-ups or anticipated changes in range of motion with repetitive use. At a December 2005 private examination the Veteran complained of persistent right knee pain and swelling following the total knee arthroplasty. Examination revealed right knee flexion to approximately 120 degrees and a two degree lack of right knee extension. There was some discomfort to palpation at the superior pole of the patella, and no significant pain with patellar grind. The examiner stated that the Veteran may have developed osteonecrosis of the patella or some early polyethylene wear of his metal-backed patella. A January 2006 letter from the same doctor indicates that the Veteran had mild effusion on the knee and some discomfort in the region of the patella to palpation, but no joint line tenderness. The doctor noted the likelihood of osteonecrosis of the patella contributing to his symptoms. During his October 2008 Board hearing, the Veteran reported continuing weakness, pain, and limitation of motion of the right knee following his right knee replacement surgery. He indicated that his walking and ability to perform household chores was limited. He stated that he was not receiving any current treatment for his knee. He estimated that he could walk for about 20 minutes. At a September 2009 VA examination the Veteran reported an initial good response to the right knee replacement but asserted that he had some increased pain in the past two to three years. He confirmed pain, stiffness, and moderate weekly flare-ups, but he denied deformity, instability, incoordination, locking, effusion, and inflammation. He was able to stand for 15 to 30 minutes and could walk one to two blocks. The examination revealed slight bony swelling of the right knee compared to the left, consistent with joint replacement surgery, but no evidence of effusion or weakness. The Veteran had full extension of the right knee and flexion to 110 degrees, with no objective evidence of pain following repetitive motion. The examiner noted that the Veteran was retired and that his knee problem, post-surgery, had no significant effects on his prior occupation, though it would preclude future occupational activities involving prolonged standing, walking, squatting, frequent stair climbing or use of ladders. The examiner further noted moderate effects on exercise, sports, and recreation; mild effects on chores, shopping, and traveling; and no effects on feeding, bathing, dressing, toileting, grooming, or driving. The Veteran was noted have hired help with his lawn and snow. The examiner noted that it would be feasible to expect that the Veteran could lose an additional five to ten degrees of range of motion during flare-ups or with repetitive activity. At a November 2010 VA General Medical examination the Veteran reported that he was able to stand for 10 to 15 minutes and would use a soft knee brace but no other assistive device. He stated there was no instability but there was pain and a sense of weakness when going down stairs. He reported walking limitations of 1-2 blocks limited by knee pain and fatigue from hepatitis. Examination of the right knee revealed slight swelling with no evidence of effusion, grinding, or clicking. The joint appeared stable and the prosthesis had no weakness. The right knee had full extension and flexion of 0 to 110 degrees without significant pain. There was no change in range of motion after three repetitions. It was noted that the Veteran could lose 5 to 10 degrees of right knee flexion with flare-ups. The examiner noted that the Veteran's right knee replacement had significant effect on the Veteran's activities of walking, kneeling, and squatting, and, in combination with his neuropathy effected his ability to perform chores at home. January and February 2013 VA treatment records reveal that the Veteran was evaluated for right foot pain. The assessment was peripheral neuropathy with insertional posterior tibial tendonitis on the right, with questionable plantar fasciitis. The Veteran was issued a cane. A March 2013 record noted that the Veteran complained that his knees were extremely painful but there were no actual findings or information pertaining to the knees. At a May 16, 2013 VA examination the Veteran complained of flare-ups in his right knee after walking up stairs or walking to the parking lot. The Veteran had right knee flexion of 115 degrees with painful motion beginning at 110 degrees. Right knee extension was to 20 degrees, with no objective evidence of painful motion. The examiner stated that the Veteran's right knee had less movement that normal, weakened movement, pain on movement, and instability upon repetitive use testing. The Veteran had tenderness or pain on palpation of the right knee joint line or tissue. Strength testing revealed 4/5 on both right knee flexion and extension. Anterior and posterior instability was recorded as 1+ while medial-lateral instability was normal. There was no evidence of right recurrent patellar subluxation or dislocation, and no meniscus conditions were noted. The Veteran's right knee surgery residuals were described as being at the intermediate degree of residual weakness, pain, or limitation of motion. It was noted that the Veteran's morbid obesity was compromising the benefits of the total knee replacement. There were no painful scars identified, and hepatitis C related lower extremity neuropathies were noted as complications or conditions related to the Veteran's right knee symptoms. The examiner stated that the Veteran's right knee did not have functional impairment such that he would be equally well served by an amputation with prosthesis. The examiner noted that with the flare-up of symptoms the Veteran could lose an additional 10 degrees of motion caused by pain from obesity after walking up stairs or across the parking lot. The examiner stated that osteonecrosis was part of the arthritis affecting the right knee joint and was not a separate entity or part and parcel of the service-connected right knee disability. X-rays revealed that the right knee prosthetic components were intact and normal and joint spaces were well maintained with no fracture or dislocation seen. There was no evidence of osteonecrosis. The diagnosis was osteoarthritis post total right knee replacement. Increased Rating Diagnostic Codes The Veteran's right knee disability is currently rated under Diagnostic Code 5055. Under Diagnostic Code 5055, for one year following implantation, the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to diagnostic codes 5256, 5261 or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5256 provides for the assignment of a 30 percent rating when there is ankylosis in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is assigned when there is extremely unfavorable ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is warranted when there is extremely unfavorable ankylosis in flexion between 20 and 45 degrees. A 60 percent rating is warranted when there is extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5256 Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262 a 40 percent rating requires nonunion of the tibia and fibula with loose motion, requiring use of a brace. Malunion of the tibia and fibula with marked knee or ankle disability allows for the assignment of a 30 percent rating; with moderate disability, 20 percent; and with slight disability, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II (2012). Additionally, under Diagnostic Code 5260 a zero percent rating is provided where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Analysis As an initial matter, the Board will consider entitlement to a higher rating under the applicable diagnostic codes as directed by Diagnostic Code 5055. The Board notes that his residuals of a total right knee replacement are not characterized by nonunion of the tibia and fibula with loose motion requiring a brace. Malunion or nonunion of the tibia and fibula was not shown. Indeed, the May 2013 right knee X-rays showed that the prosthesis components and joint spaces were normal, and no bone abnormality was noted. The Veteran is therefore not entitled to a compensable rating, pursuant to Diagnostic Code 5262, for impairment of the tibia and fibula. There is also no evidence that the Veteran's right knee is ankylosed. The record shows that the Veteran retains an active, although limited, range of motion. In any event, a compensable rating under Diagnostic Code 5256 for ankylosis of the knee is not warranted. The Veteran's range of motion of the right knee measured flexion to 120 degrees and extension to 10 degrees in December 2005. Flexion was limited to 110 degrees at the September 2009 and November 2010 VA examinations. Extension was full on both examinations. Such does not warrant a compensable rating under Diagnostic Code 5260 for limitation of flexion. The limitation of extension to 10 degrees would support the assignment of a 10 percent rating under Diagnostic Code 5261, which is still while shy of the 30 percent he currently receives. Indeed, even when considering additional limitation of function due to factors such as flare-ups of pain, weakness, incoordination and fatigability (as directed by 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995)), a rating in excess of the 30 percent rating is not warranted. The 2009 and 2010 VA examiners said that a flare-up pain would result in an additional loss of range of motion no greater than 10 degrees. Such would amount to a limitation of flexion to 100 degrees and a limitation of extension to 20 degrees. A 30 percent rating could thereby be assigned under Diagnostic Code 5261. However, he would still be in receipt of a noncompensable rating based on loss of flexion. Accordingly, a rating in excess of 30 percent for status post total right knee replacement from July 1, 2005 through May 15, 2013 under Diagnostic Codes 5256 and 5260-5262 is not warranted. However, as demonstrated at the May 16, 2013 VA examination, the Veteran's right knee showed a limitation of extension to 20 degrees. Such a rating warrants a 30 percent rating under Diagnostic Code 5261. However, the Board must also consider additional limitation of function due to factors such as flare-ups of pain, weakness, incoordination and fatigability as directed by 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The May 2013 VA examiner stated that, during flare-ups, the Veteran's right knee would be expected to lose 5-10 additional degrees of motion. These findings indicate a disability picture comparable to having right knee extension limited to 30 degrees as is necessary in order to achieve a 40 percent evaluation under Diagnostic Code 5261. A rating of 40 percent for the Veteran's right knee disability is warranted, effective May 16, 2013, due to limitation of extension. The Board observes that the medical findings previously discussed do not establish loss of right knee flexion to a compensable degree, and separate evaluations pursuant to VAOPGCPREC 9-2004 is not appropriate. The Board finds that the assignment of a higher (60 percent) rating is not warranted at any time during the appeal period under Diagnostic Code 5055 for severe, chronic residuals of his total right knee replacement. While the December 2005 private examiner stated that the Veteran had persistent right knee pain and swelling, a December 2005 VA examiner indicated that the Veteran's right knee symptoms had just moderate effects on his activities of daily living. In this regard, the Board observes that at his October 2008 hearing the Veteran denied current treatment for his right knee disability, and the recent VA medical records note essentially treatment for right foot pain, but not the right knee. The September 2009 VA examiner also noted that the Veteran's right knee disability had just moderate effects on exercise, sports, and recreation, with mild effects on chores, shopping, and traveling, and no effects on feeding, bathing, dressing, toileting, grooming, or driving. The Veteran was noted have hired help with his lawn and snow. While the May 2013 VA examiner stated that the Veteran's right knee had symptoms such as weakened movement, pain on movement, and instability, right knee strength testing was 4/5, and the over-all characterization of the veteran's right knee was described as being at the intermediate degree of residual weakness, pain, or limitation of motion. These factors do not constitute severe chronic residuals of the Veteran's right knee. The Board also notes that both the Veteran and medical personnel have attributed some of the Veteran's ambulation problems to his hepatitis and peripheral neuropathy disabilities. The Court's February 2012 Memorandum Decision essentially stated that the Board must address the possibility, raised by the Veteran's private examiner, that the Veteran had developed a secondary condition, osteonecrosis, as a result of his right knee replacement. In a January 2006 letter the Veteran's private physician indicated that it was likely that the Veteran had osteonecrosis, based on an earlier bone scan that had findings that suggested the possibility of underlying osteonecrosis of the right patella. The Board observes, however, that the private examiner's conditional assessment of osteonecrosis was not confirmed by contemporaneous private X-rays. An earlier bone scan similarly indicated that there was only a "possibility" of osteonecrosis. Conversely, May 2013 VA X-rays indicated that osteonecrosis was not present. The May 2013 VA examiner also stated that the osteonecrosis would not have been "part and parcel" of the Veteran's right knee disability. The Board finds that probative value of the 2013 X-ray study and opinion outweighs the far less definitive (speculative) private findings. As such, right knee osteonecrosis is not a factor for consideration in the Veteran's appeal. Notwithstanding the Veteran's right knee disability ratings already discussed in this decision, the Board notes the Veteran is already in receipt of a 10 percent rating for right knee instability under Diagnostic Code 5257. Under that code, knee impairment with recurrent subluxation or lateral instability warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, or a 30 percent rating if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Right knee instability had not been shown on the various private and VA medical records dated prior to the May 2013 VA examination. In fact, the Veteran specifically denied that he had right knee instability at the September 2009 and November 2010 VA examinations. The knee was also found to be stable on physical examination. The most recent examination of record (May 2013) did show some slight right knee instability. The May 2013 VA examination recorded right knee instability as 1+ (0-5 millimeters). The May 2013 VA examination identified 3 levels of instability ranging from 1+ to 3+. The Board finds that the Veteran's level of right knee instability of 1+ is akin to a finding of just slight right knee instability and is reflected in the Veteran's currently assigned 10 percent rating under Diagnostic Code 5257. Accordingly, a rating in excess of 10 percent for right knee instability is not warranted at any time during the entire appeal period. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his right knee disability. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his right knee disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's right knee disability has been demonstrated by the medical evidence that existed at that time. The medical findings directly address the criteria under which the Veteran's right knee disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's right knee disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected right knee disability. The Veteran's symptoms such as pain and limitation of motion are specifically enumerated under the applicable Diagnostic Codes. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating in excess of 30 percent for status post total right knee replacement from July 1, 2005 through May 15, 2013 is denied. A rating of 40 percent for status post total right knee replacement from May 16, 2013 is granted, subject to the applicable law governing the award of monetary benefits. A rating in excess of 10 percent for right knee instability is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs