Citation Nr: 1324545 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-29 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased evaluation for patellofemoral syndrome of the right knee, evaluated as 0 percent disabling prior to January 6, 2011, and as 10 percent disabling on and after January 6, 2011. 2. Entitlement to an increased evaluation for patellofemoral syndrome of the left knee, evaluated as 0 percent disabling prior to January 6, 2011, and as 10 percent disabling on and after January 6, 2011. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to August 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied compensable disability ratings for the patellofemoral syndrome of the left and right knees. The Veteran then perfected a timely appeal of these issues. In a January 2011 Supplemental Statement of the Case (SSOC), the Veteran's left and right knee disabilities were each assigned separate 10 percent disability ratings, effective January 6, 2011. This action created staged ratings, as shown on the title page of this decision. The Veteran continued to appeal, requesting even higher disability ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). In his August 2009 Substantive Appeal, the Veteran requested a Board hearing at a local VA office before a Member of the Board. The Veteran's hearing was scheduled for May 2011, and he was sent a notice letter in April 2011. The Veteran did not report for the hearing, and he has neither requested a new hearing nor shown good cause for his failure to report. Therefore, his hearing request is deemed withdrawn. In October 2011 and January 2013, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Upon remand, a subsequent March 2013 rating decision granted the Veteran's service connection claims for bilateral hip disorders. These claims were previously on appeal before the Board. To date, the Veteran had not appealed either the initial disability ratings or effective dates assigned for the bilateral hips. Therefore, those claims have been resolved and are no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2012). The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. Prior to January 6, 2011, the Veteran's patellofemoral syndrome of the right knee was manifested by pain, but did not demonstrate limitation of motion, degenerative arthritis shown on X-rays, instability, subluxation, ankylosis, structural abnormalities of the knee, or genu recurvatum. 2. Prior to January 6, 2011, the Veteran's patellofemoral syndrome of the left knee was manifested by pain, but did not demonstrate limitation of motion, degenerative arthritis shown on X-rays, instability, subluxation, ankylosis, structural abnormalities of the knee, or genu recurvatum. 3. Since January 6, 2011, the Veteran's patellofemoral syndrome of the right knee has been manifested by pain and limitation of motion, but did not demonstrate compensable limitation of motion, degenerative arthritis with occasional incapacitating exacerbations, instability, subluxation, ankylosis, structural abnormalities of the knee, or genu recurvatum. 4. Since January 6, 2011, the Veteran's patellofemoral syndrome of the left knee has been manifested by pain and limitation of motion, but did not demonstrate compensable limitation of motion, degenerative arthritis with occasional incapacitating exacerbations, instability, subluxation, ankylosis, structural abnormalities of the knee, or genu recurvatum. CONCLUSIONS OF LAW 1. Prior to January 6, 2011, the criteria for a compensable disability rating for the patellofemoral syndrome of the right knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5099-5003, 5260, 5261 (2012). 2. Prior to January 6, 2011, the criteria for a compensable disability rating for the patellofemoral syndrome of the left knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, DCs 5099-5003, 5260, 5261 (2012). 3. Since January 6, 2011, the criteria for a disability rating in excess of 10 percent for the patellofemoral syndrome of the right knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, DCs 5099-5003, 5260, 5261 (2012). 4. Since January 6, 2011, the criteria for a disability rating in excess of 10 percent for the patellofemoral syndrome of the left knee are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, DCs 5099-5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. 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). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to and following the initial adjudication of the Veteran's increased rating claims, letters dated in February 2008, August 2008, and November 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by the August 2008 notice letter to the Veteran regarding his increased rating claims. Although this letter was not sent prior to the initial adjudication of the Veteran's claims, this was not prejudicial to him, since the claims were readjudicated in the June 2009 Statement of the Case (SOC) and January 2011, September 2012, and March 2013 SSOCs. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his disabilities. 38 C.F.R. § 4.2 (2012). The Board is also satisfied as to substantial compliance with its October 2011 and January 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The remands included scheduling the Veteran for additional VA examinations, which he had in November 2011 and February 2013. The remands also directed the AMC to readjudicate the Veteran's claims, which was accomplished in the September 2012 and March 2013 SSOCs. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed rating decision of September 2006 granted service connection for the Veteran's bilateral knee disabilities. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a noncompensable (0 percent) evaluation for his patellofemoral syndrome of the bilateral knees prior to January 6, 2011. The Veteran is also in receipt of a 10 percent evaluation for his patellofemoral syndrome of the bilateral knees since January 6, 2011. The Veteran was previously rated under 38 C.F.R. § 4.71a, DC 5260. The Veteran is currently rated, by analogy, under 38 C.F.R. § 4.71a, DCs 5099-5003. In this regard, if a Veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (2012) (providing specific means of listing DC for unlisted disease or injury). The Veteran asserts that he is entitled to higher disability ratings. The Board will address all of these codes in its decision. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating disabilities listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the appropriate DCs for limitation of motion of the knee are DCs 5260 and 5261. Under DC 5260, a noncompensable (0 percent) rating is warranted if flexion is limited to 60 degrees. A 10 percent rating requires flexion of the knee limited to 45 degrees. A 20 percent rating is warranted for flexion of the knee limited to 30 degrees. A 30 percent rating is warranted for flexion of the knee limited to 15 degrees. A 30 percent rating is the maximum schedular rating available under DC 5260. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating is warranted if extension is limited to 5 degrees. A 10 percent rating requires extension limited to at least 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. A 50 percent rating is the maximum schedular rating available under DC 5261. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability. It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability which is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. Id. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in VA's Rating Schedule. 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. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, 38-43 (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, at 592 (1991). Instead, in Mitchell, the 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. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3. The Board will begin by addressing the noncompensable disability ratings in effect prior to January 6, 2011. Specifically, the Veteran was afforded a VA examination in March 2008. At the examination, the Veteran reported some discomfort in his knees after prolonged standing, which usually occurred at work. The Veteran did not use any assistive devices for his knees. The Veteran was able to fully extend his knees to 180 degrees multiple times without any pain, weakness, fatigue, or lack of endurance. The Veteran was also able to fully flex his knees to 140 degrees multiple times without any pain, weakness, fatigue, or lack of endurance. The examiner found that the joints did not have any pain with movement. In a February 2009 VA Medical Center (VAMC) outpatient treatment record, the Veteran reported that his bilateral knee pain was doing better and he was doing "ok." Ranges of motion were not obtained at this treatment visit. The remaining VA treatment records in the claims file do not provide any contrary evidence. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to compensable disability ratings for his service-connected bilateral knee disabilities prior to January 6, 2011. Here, there is no evidence of limitation of motion of the knees (either flexion or extension) to warrant higher disability ratings, prior to January 6, 2011. At the VA examination, the Veteran's ranges of motion of the knees were normal (see 38 C.F.R. § 4.71, Plate II), even with consideration of his pain, and the VA treatment records do not provide contrary evidence. Thus, the Veteran is not entitled to higher disability ratings for any limitation of motion of the knees, prior to January 6, 2011. 38 C.F.R. § 4.71a, DCs 5003, 5260, 5261. The Veteran is also not entitled to higher 10 percent ratings under DC 5003, prior to January 6, 2011. 38 C.F.R. § 4.71a. The evidence described above establishes that the Veteran does not have a noncompensable or compensable disability rating under the limitation of flexion code (DC 5260) or the limitation of extension code (DC 5261). 38 C.F.R. § 4.71a. In instances where there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, but there is degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is warranted. 38 C.F.R. § 4.71a. The only X-rays of the knees of record dated prior to January 6, 2011, are X-rays taken at the Veteran's VA discharge examination in June 2006. The impressions of these X-rays were "no significant findings." The X-rays did not document degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The medical evidence dated prior to January 6, 2011, does not contain any contrary evidence. Thus, the Veteran is not entitled to higher 10 percent ratings under DC 5003 for his service-connected bilateral knee disabilities, prior to January 6, 2011. 38 C.F.R. § 4.71a. The Veteran is also not entitled to separate disability ratings under DC 5257 for instability or subluxation of the knees, prior to January 6, 2011. 38 C.F.R. § 4.71a. At the March 2008 VA examination, the VA examiner found the Veteran's knees to be stable and without a limp. The Veteran did not use any assistive devices. Instability and subluxation were not documented on the VA examination report or in the VA treatment records dated prior to January 6, 2011. Thus, the Veteran is not entitled to separate disability ratings under DC 5257 for his service-connected bilateral knee disabilities, prior to January 6, 2011. 38 C.F.R. § 4.71a, DC 5257. The remainder of the DCs pertaining to the knee and leg also do not justify compensable disability ratings for the service-connected bilateral knee disabilities. Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knee. The existence of ankylosis is not supported by the Veteran's ranges of motion. DC 5258 is applicable where there is dislocated cartilage of the knee, and DC 5259 is applicable where there is removal of cartilage of the knee. DC 5262 describes malunion or nonunion of the knee. These codes have not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran's knees or dislocated cartilage documented. At the March 2008 VA examination, the Veteran's knee ligaments were found to be stable by the VA examiner. X-rays taken at the June 2006 VA discharge examination did not reveal any abnormalities of the knees. Thus, the Veteran is not entitled to higher disability ratings of 10 percent under these codes. DC 5263 refers to acquired, traumatic genu recurvatum, which has also not been demonstrated by the aforementioned evidence of record. Thus, these remaining DCs do not justify disability ratings in excess of 0 percent for the service-connected bilateral knee disabilities, prior to January 6, 2011. 38 C.F.R. § 4.71a. In forming this decision, the Board has considered the Veteran's complaints of pain in the knees. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran's disabilities warrant compensable disability ratings prior to January 6, 2011. 38 C.F.R. § 4.71a. Specifically, at the March 2008 VA examination, the VA examiner determined that, during DeLuca testing, a two pound weight was used and the knees were able to fully extend multiple times to 180 degrees and fully flex multiple times to 140 degrees, without any pain, weakness, fatigue, or lack of endurance. The VA examiner determined that the Veteran's occupation as a designer is not at all affected by his bilateral knee disabilities, except for prolonged periods of standing. His daily activities are not affected by his bilateral knee disabilities. The examiner found no apparent functional impairment, and no history of any flare-ups of the knees. There are no contrary medical opinions in the claims file. Given that the Veteran was able to achieve the aforementioned ranges of motion of the knees on examination despite his later complaints of pain (in the VA treatment records), the Board finds that additional compensation for pain is not warranted. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell, 25 Vet. App. at 32. An award of a higher rating cannot be based on speculation of the additional functional loss in terms of degrees during such flare-ups. Thus, the Board finds that the Veteran's painful limitation of motion meets the impairment contemplated by the current schedular disability ratings throughout the entire appeal period and does not more nearly approximate functional impairment commensurate with higher disability ratings. Even when considering the Veteran's later complaints of pain, the evidence of record does not establish that he has the requisite limitation of motion of the knees to warrant compensable disability ratings, prior to January 6, 2011. Accordingly, prior to January 6, 2011, the evidence of record does not support the assignment of higher disability ratings for the knees based on additional functional limitation following repetitive use or flare-ups of the joint. The Board will now address the 10 percent disability ratings in effect since January 6, 2011. Specifically, the Veteran was afforded a VA examination on January 6, 2011. At the examination, the Veteran reported using a "cho-pat strap and ace bandage" for support of his knees during exercise and work. The Veteran also described pain in the knees. His ranges of motion of the knees were normal for flexion and extension, even with consideration to his pain. The examiner found there was objective evidence of pain with active motion of the knees. The Veteran was provided another VA examination in November 2011. At the examination, the Veteran's ranges of motion were as follows: forward flexion of the right knee limited to 140 degrees, with objective evidence of pain beginning at 40 degrees; right knee extension limited to 30 degrees, with objective evidence of pain beginning at 10 degrees; left knee flexion limited to 130 degrees with objective evidence of pain beginning at 70 degrees; and, left knee extension limited to 35 degrees, with painful motion beginning at 20 degrees. Interpreting the extension numbers in accordance with VA's Rating Schedule led the Board to conclude that the Veteran's range of painful motion was greater than his total range of motion. Since this cannot be the case, the Board remanded the claims in order to obtain range of extension findings that are compatible with VA's rating criteria. Accordingly, in February 2013, the Veteran was afforded another VA examination. At the examination, the Veteran's ranges of motion of the knees were as follows: forward flexion of the right knee limited to 115 degrees, with objective evidence of pain beginning at 110 degrees; extension of the right knee limited to 0 degrees, with objective evidence of pain beginning at 0 degrees; flexion of the left knee limited to 105 degrees, with objective evidence of pain beginning at 100 degrees; and, extension of the left knee limited to 0 degrees, with objective evidence of pain beginning at 0 degrees. The remaining VA treatment records in the claims file do not provide any contrary evidence. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to disability ratings in excess of 10 percent for his service-connected bilateral knee disabilities since January 6, 2011. Regarding the limitation of motion codes, as noted above, a claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DC 5260 or DC 5261. VAOPGCPREC 9-98. However, the evidence of record does not establish that the Veteran's flexion of the knees is limited to 30 degrees, to warrant higher disability ratings of 20 percent, even when considering the Veteran's pain. The evidence of record also does not establish that the Veteran's extension of the knees is limited to 15 degrees, to warrant a separate rating, even when considering the Veteran's pain. Thus, the Veteran is not entitled to higher disability ratings based on his limitation of motion of the knees. 38 C.F.R. § 4.71a, DCs 5260, 5261. The Veteran is also not entitled to higher 20 percent ratings under DC 5003. 38 C.F.R. § 4.71a. Regarding the right knee disability, the evidence described above, particularly the November 2011 VA examination, establishes that the Veteran does have a compensable disability rating under the limitation of flexion code (DC 5260) for his right knee, even when considering the Veteran's pain. 38 C.F.R. § 4.71a. In this regard, DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the Veteran's right knee is appropriately rated as 10 percent, based on his painful motion, under DC 5260. His range of flexion, as demonstrated at the November 2011 VA examination, meets the requirements for the 10 percent rating under DC 5260. Therefore, the Veteran is best rated under the limitation of motion codes for his right knee, and DC 5003 cannot provide the basis for a higher rating. 38 C.F.R. § 4.71a. Regarding the left knee disability, the evidence described above establishes that the Veteran does not warrant a compensable disability rating under the limitation of motion codes (DCs 5260 and 5261). 38 C.F.R. § 4.71a. In instances where there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, but there is degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. 38 C.F.R. § 4.71a. However, the evidence of record does not establish that the Veteran has occasional incapacitating exacerbations from his right or left knee disability. These complaints were not noted in any of the VA compensation examinations or treatment records. Thus, the Veteran is not entitled to a higher 20 percent under DC 5003. 38 C.F.R. § 4.71a. The Veteran is also not entitled to separate disability ratings under DC 5257 for instability or subluxation of his knees. 38 C.F.R. § 4.71a. At the January 2011 VA examination, the Veteran reported "intermittent, but frequent" use of a "cho-pat strap and ace bandage" for support of the knees during exercise and work; however, he denied any giving way, instability, or subluxation of the knees. At the November 2011 VA examination, the Veteran reported the use of an Ace bandage for his knees. However, both knees revealed normal stability at the examination, following instability testing. The examiner also found that the Veteran did not have any subluxation of the knees. The February 2013 found that the Veteran did not use any assistive devices for his knees. His stability testing was normal at the February 2013 VA examination, and the examiner found that the Veteran did not have subluxation of the knees. Instability and subluxation are also not documented in the VA treatment records dated since January 6, 2011. Thus, the Veteran is not entitled to a separate disability rating under DC 5257 for his service-connected bilateral knee disabilities. 38 C.F.R. § 4.71a, DC 5257. The remainder of the DCs pertaining to the knee and leg also do not justify disability ratings in excess of 10 percent for the service-connected bilateral knee disabilities. Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knee. The existence of ankylosis is not supported by the Veteran's ranges of motion. The January 2011 VA examiner also made a specific finding that the Veteran did not have joint ankylosis. DC 5258 is applicable where there is dislocated cartilage of the knee, and DC 5259 is applicable where there is removal of cartilage of the knee. These codes have not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran's knees noted at the VA examinations or in the VA treatment records. X-rays taken at the January 2011 and February 2013 VA examinations were normal. The November 2011 and February 2013 VA examiners found that the Veteran did not have any dislocations, or dislocated or missing cartilage, of his knees. Thus, the Veteran is not entitled to separate disability ratings under DC 5258 or DC 5262. Additionally, the Veteran is already in receipt of the maximum schedular rating of 10 percent under DC 5259 and DC 5263. Thus, these remaining DCs do not justify a disability rating in excess of 10 percent for the service-connected bilateral knee disabilities. 38 C.F.R. § 4.71a. Therefore, the Veteran is not entitled to higher disability ratings for his service-connected bilateral knee disabilities since January 6, 2011. 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a, DCs 5003, 5260, 5261. In forming this decision, the Board has considered the Veteran's complaints of pain in the knees. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran's disability warrants higher disability ratings since January 6, 2011. 38 C.F.R. § 4.71a. Specifically, at the January 2011 VA examination, the Veteran denied any flare-ups, stiffness, or incoordination of the knees, but described pain and weakness in the knees. The January 2011 VA examiner found that there was objective evidence of pain with active motion on the left and right sides. It was also noted that there was objective evidence of pain following repetitive motion. The examiner then found that there were no additional limitations after three repetitions of range of motion. However, the examiner did not expressly note the extent to which the Veteran's ranges of motion were limited by pain. Accordingly, in its October 2011 decision, the Board determined that it was necessary to remand these issues in order to obtain a new examination to address the deficiencies of the January 2011 examination report. In November 2011, the Veteran was afforded another VA examination. At the examination, the Veteran described daily flare-ups of pain in his knees that impact his work day. The VA examiner determined that the Veteran was able to perform repetitive-use testing with three repetitions of each knee. The examiner found that the Veteran did not have any additional limitation in ranges of motion of the knees following repetitive-use testing. However, the examiner did find that the Veteran had functional loss and/or functional impairment of the knees due to the following contributing factors: less movement than normal; weakened movement; excess fatigability; pain on movement; and, interference with sitting, standing, and weight-bearing. The examiner also determined that the Veteran's bilateral knee disabilities impact his ability to work because he must have fellow employees help with lifting and the disabilities "sometimes" shorten his work day. In summary, following a physical examination of the Veteran and a review of the claims file, the VA examiner concluded that the Veteran has excess fatigability of the knees when working, which requires shortened work days and help from fellow workers. The examiner stated that the Veteran also has daily pain flares, which require medications and rest. The examiner also pointed to the Veteran's statements that sometimes he is unable to stand or go to work due to his knee pain. The Veteran was afforded another VA examination in February 2013. At the examination, the Veteran reported flare-ups that impact the function of his knees. Specifically, the Veteran stated that prolonged walking and exercise at the gym flare-up his knees. Following a physical examination of the Veteran, the VA examiner found that the Veteran was able to perform repetitive-use testing with three repetitions of the knees. Following repetitive-use testing, the Veteran did have additional limitation in his ranges of motion of the knees. Specifically, following repetitive-use testing, the Veteran's extension of each knee did not change (i.e., remained at 0 degrees). However, following repetitive-use testing, the Veteran's flexion of each knee changed. Initially, the Veteran's right knee flexion was limited to 115 degrees, with objective evidence of painful motion at 110 degrees. Following repetitive motion, the Veteran's right knee flexion was limited to 110 degrees. Initially, the Veteran's left knee flexion was limited to 105 degrees, with objective evidence of painful motion at 100 degrees. Following repetitive motion, the Veteran's left knee flexion was limited to 100 degrees. The examiner also found that the Veteran had functional loss and/or functional impairment of the knees due to the following contributing factors: weakened movement; excess fatigability; pain on movement; and, interference with sitting, standing, and weight-bearing. The examiner determined that the Veteran's service-connected bilateral knee disabilities impact his ability to work. The examiner reasoned that these disabilities limit his prolonged standing, walking, and heavy lifting and carrying of items. Given that the Veteran was able to achieve the aforementioned ranges of motion of the knees on examination despite the presence of pain, the Board finds that additional compensation for pain is not warranted. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell, 25 Vet. App. at 32. An award of a higher rating cannot be based on speculation of the additional functional loss in terms of degrees during such flare-ups. Thus, the Board finds that the Veteran's painful limitation of motion and additional functional impairment meets the impairment contemplated by the current 10 percent schedular disability ratings since January 6, 2011, and do not more nearly approximate functional impairment commensurate with higher disability ratings. Even when considering the Veteran's pain and functional impairment following repetitive motion, the evidence of record does not establish that he has the requisite limitation of motion of the knees to warrant higher disability ratings. Accordingly, the evidence of record does not support the assignment of higher disability ratings for the service-connected bilateral knee disabilities based on additional functional limitation following repetitive use or flare-ups of the joint, since January 6, 2011. It also bears reiterating that the Veteran does not have sufficient limitation of flexion or extension in his left knee, even when considering his pain, to warrant even the minimum compensable rating of 10 percent under DCs 5260 or 5261. Thus, his current 10 percent rating for his service-connected left knee disability under DCs 5099-5003 is the means of compensating him for the additional impairment - including additional limitation of motion, from his chronic pain from the degenerative changes in this knee. Thus, he is already receiving the appropriate amount of compensation for the pain and other DeLuca factors. In forming these decisions, the Board has also considered whether additional staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period have the service-connected bilateral knee disabilities more nearly met or nearly approximated the criteria for higher disability ratings. Accordingly, staged ratings since January 6, 2011 are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. 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. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his bilateral knee disabilities are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the preponderance of the evidence is against the assignment of compensable disability ratings for patellofemoral syndrome of the knees prior to January 6, 2011. The preponderance of the evidence is also against the assignment of disability ratings in excess of 10 percent for patellofemoral syndrome of the knees since January 6, 2011. Thus, the claims are denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 49. III. Extraschedular and TDIU Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2012), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular ratings for the Veteran's bilateral knee disabilities fully address his symptoms, which include mainly pain, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. The evidence of record does not establish, and the Veteran does not contend, that his bilateral knee disabilities prevent him from being employed or require frequent hospitalizations. Specifically, the November 2011 and February 2013 VA examiners found that the Veteran's service-connected bilateral knee disabilities impact his work. The November 2011 VA examiner reasoned that these disabilities require fellow employees to help the Veteran with lifting and "sometimes" these disabilities shorten his work day. The February 2013 VA examiner reasoned that these disabilities limit his prolonged standing, walking, and heavy lifting and carrying of items. Neither VA examiner found that the Veteran could not maintain his employment due to his service-connected bilateral knee disabilities. The claims file does not contain any medical opinions finding that the Veteran's service-connected bilateral knee disabilities prevent his employability. Throughout the appeal, the Veteran has been employed and has not been hospitalized due to his service-connected bilateral knee disabilities. Thus, there is no evidence that the Veteran's service-connected bilateral knee disabilities cause impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At all of the VA examinations, the Veteran reported that he was currently employed, and there is no allegation that his service-connected bilateral knee disabilities have resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER Prior to January 6, 2011, a compensable evaluation for the service-connected patellofemoral syndrome of the right knee is denied. Prior to January 6, 2011, a compensable evaluation for the service-connected patellofemoral syndrome of the left knee is denied. Since January 6, 2011, an evaluation in excess of 10 percent for the service-connected patellofemoral syndrome of the right knee is denied. Since January 6, 2011, an evaluation in excess of 10 percent for the service-connected patellofemoral syndrome of the left knee is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs