Citation Nr: 1324990 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-45 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for patellofemoral pain syndrome of the left knee, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for right shoulder tendonitis, status post arthroscopic surgery for impingement syndrome, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1993 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2012, the Veteran testified before the undersigned at a Board hearing via video conference from the RO. In February 2013, the Board remanded this case, including the issues remaining on appeal. FINDINGS OF FACT 1. The Veteran's left knee is manifest by painful motion which limits flexion to 120 degrees; extension is full; there is no instability of the left knee or subluxation. 2. The Veteran's right shoulder disability is manifest by painful motion on flexion/abduction which limits movement to 160 degrees; however, the Veteran can move his right arm above shoulder level. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome of the left knee, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Part 4, Diagnostic Codes 5099-5020, 5260 (2012). 2. The criteria for a rating in excess of 10 percent for right shoulder tendonitis, status post arthroscopic surgery for impingement syndrome are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Part 4, Diagnostic Codes 5099-5024, 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 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). If, 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, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in July 2006, February 2013, and April 2013. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) and an RO Decision Review Officer (DRO) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ and DRO did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ and DRO asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating/service connection. In addition, the Veteran volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board and DRO hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disabilities since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The case was already remanded for a new VA examination and this VA examination report is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of the disabilities in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining the additional medical evidence, the Board is satisfied there was compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if 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. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that 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. In this case, there has not been a material change in the disability level for the left knee and right shoulder and a uniform rating for each is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 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). 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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 Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Left Knee The Veteran has been assigned a 10 percent rating for his left knee disability under Diagnostic Code 5099-5020. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 . Diagnostic Code 5099 refers to an unlisted disability of the musculoskeletal system. Diagnostic Code 5020 pertains to synovitis and is rated on limitation of motion of affected parts as degenerative arthritis under Diagnostic Code 5003, as discussed below. The Veteran does not have arthritis, but is rated based on limitation of motion, per below. In June 2006, correspondence was received from the Veteran in which he indicated that his left knee had worsened. In conjunction with his claim, the Veteran was afforded a VA examination in November 2006. The Veteran related that standing for prolonged periods of time could cause aching in his left knee as well as swelling. He also reported stiffness. The Veteran indicated that it was difficult for him to squat. He said that he had weakness, but no instability or locking. He did not take medications for his left knee. He reported that he had flare-ups with weather changes which increased his symptoms. He did not wear a brace and had not had any injuries. His daily activities were affected in that he could not squat, walk for long distances, or run. However, there had not been any job interference. Physical examination revealed that the left knee appeared anatomically normal with no swelling or tenderness around the patella or around the medial or lateral aspect of the joint. He did not have a Baker's cyst or tenderness in the posterior aspect of the joint. Range of motion testing revealed flexion to 140 degrees and extension to zero degrees. Repeat testing did not result in pain, weakness, or fatigue. Lateral and medical stress on the knee showed no laxity of the lateral or medial collateral ligaments. The Veteran had a negative anterior and posterior Drawer sign which indicated an intact anterior and posterior cruciate ligament. McMurray's sign was negative. The Veteran walked without a limp. Left knee x-rays were unremarkable. In January 2009, the Veteran testified at an RO hearing. He testified that he had decreased strength in his left knee as well as aching. In April 2009, the Veteran was afforded a VA examination. The Veteran reported that he had intermittent swelling and pain. He indicated that he did not have deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, inflammation, limitation of motion, or flare-ups. Range of motion testing revealed extension of zero degrees and flexion to 140 degrees. There was no pain following repetitive testing or additional limitations. The examiner noted that there were some effects on the Veteran's usual activities with mild restriction for chores, shopping, recreation, traveling, dressing and driving; moderate restriction for exercise and a prevention of sports. There were no significant effects on the Veteran's occupation. X-rays were normal. In August 2009, the Veteran was afforded another examination. Physical examination revealed that the knee appeared anatomically normal with no tenderness or swelling around the patella and no tenderness or swelling around the medial and lateral aspects of the joint. There was no Baker's cyst or tenderness in the posterior aspect of the joint. The patella tracked in the center sulcus. The Veteran was able to flex to 140 degrees and also fully extended. Repeat testing revealed no pain, weakness, or fatigue. Lateral and medial stress on the knee showed no laxity of the lateral or medial collateral ligaments. The Veteran had a negative anterior and posterior Drawer sign as well as a negative McMurray's sign. The Veteran ambulated without the appearance of discomfort. X-rays were normal. The diagnosis was patellofemoral syndrome with the knee being minimally symptomatic. The examiner noted that the Veteran's activities were minimally impacted. In November 2012, the Veteran testified at a Board hearing. The Veteran testified that his left knee hurt especially with squatting, sitting for prolonged periods, and negotiating stairs. He indicated that he had locking which caused severe pain. He said that he occasionally walked with an altered gait. In addition, he reported some swelling and muscle spasms. He had not lost any time from work due to his knee. In light of the Veteran's contentions that his disability worsened, the Board remanded this case. In May 2013, the Veteran was afforded a new VA examination. Range of motion studies revealed that the Veteran had full extension and flexion, from zero to 140 degrees. With pain, flexion was limited to 120 degrees. The Veteran was able to perform three repetitions. His functional loss was noted to be pain on movement. His strength was 5/5. All stability testing was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran did not have any meniscal conditions or surgical procedures including a meniscectomy. He also had not undergone a total knee joint replacement or arthroscopy surgery and there were no scars. X-rays did not reveal arthritis. The examiner stated that he Veteran's left knee condition did not affect his ability to work. Turning to the rating criteria, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), Diagnostic Code 5003. Note 2 under Diagnostic Code 5003 indicates that the 10 percent and 20 percent rating based on x-ray findings will not be utilized in rating a condition under Diagnostic Codes 5013-5024, inclusive. Id. 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. 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. 38 C.F.R. § 4.71, Plate II, shows that normal flexion and extension of the knee is from zero degrees to 140 degrees. It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation/instability or under Diagnostic Code 5258-9 for cartilage impairment. Essentially, these opinions suggest that separate compensable ratings may be assigned when reported limitation of knee motion shown is compensable or when there is X-ray evidence of arthritis together with a finding of painful motion. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words 'slight,' 'moderate,' and 'severe' as used in this code are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for 'equitable and just decisions.' 38 C.F.R. § 4.6. In considering the applicability of other diagnostic codes that may also be separately rated, the Board notes that Diagnostic Codes 5258-5259 address injury to cartilage of the knee. Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The General Counsel has suggested in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve symptomatology caused by tears and displacements of the menisci that may be rated separately from symptoms caused by arthritis. In this case, there is no meniscus abnormality of either knee nor is there instability, subluxation, dislocation, or ankylosis. Thus, ratings based on those manifestations as cited above are not warranted. In addition, the Board has considered the application of other alternative codes, but finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Veteran's left knee disability is manifest by painful and limited flexion to 120 degrees at worse. Extension is normal and pain-free. While the Veteran did not meet the criteria for even a zero percent rating based on limitation of flexion, since there was limited and painful flexion, a 10 percent rating, remains warranted per 38 C.F.R. § 4.59; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5020. However, a higher rating is not warranted because despite the pain, there was no functional limitation of flexion to 30 degrees. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left knee condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal is more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony, however, has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Thus, in sum, the Veteran has been properly assigned a 10 percent rating based on limitation of motion/painful motion on flexion of the left knee. However, based on the clinical findings on multiple examinations, there is no basis for a higher rating, even considering the DeLuca elements. The Board recognizes that he Veteran contends that his disability is worse than rated; however, he has been examined on multiple occasions and his symptoms more nearly approximate the 10 percent rating. Thus, an increased rating is not warranted. Right Shoulder The Veteran has been assigned a 10 percent rating for his right shoulder disability under Diagnostic Code 5099-5024. Diagnostic Code 5099 refers to an unlisted disability of the musculoskeletal system. Diagnostic Code 5024 pertains to tenosynovitis and is rated on limitation of motion of affected parts as degenerative arthritis under Diagnostic Code 5003. As noted, when there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. The Veteran does not have arthritis, but does have limitation of motion, as discussed below. In June 2006, the Veteran was seen by a private provider. It was noted that he did not have any shoulder instability and the acromioclavicular (AC) joint was nontender. Strength was normal. Range of motion testing revealed 170 degrees of forward elevation, 75 degrees of external rotation, and internal rotation to T/8/T6. There was some mild tenderness with resisted forward elevation as well as a mild impingement sign and mild Hawkin's sin. The impression was bilateral shoulder tendinitis and impingement syndrome. In November 2006, the Veteran was afforded a VA examination. The Veteran stated that his right shoulder hurt him at night and interfered with his sleep. He related that laying on his shoulder caused pain and would wake him up. He also indicated that the right shoulder exhibited stiffness. He reported that he could not use a throwing motion and that any overhead type of activity caused pain or stiffness. He did not take any medications and did not use a brace. He related that he had not any flare-ups of injuries. His daily activities were affected primarily with regard to playing with his children. He also said that he was more prone to use his left arm even though he was right-handed because of discomfort in his right shoulder. He noted that his shoulder really did not affect his employment. Physical examination revealed that it appeared anatomically normal with no tenderness or swelling in the joint. The Veteran was able to forward flex from zero to 180 degrees and abduct the same. The Veteran had pain at the maximum flexion and abduction. The Veteran had external and internal rotation to 90 degrees. Repeat flexion and abduction of the shoulder did not produce pain, weakness, or fatigue. The Veteran exhibited normal strength with forward flexion and abduction against force as well as normal strength with external and internal rotation against force. X-rays of the right shoulder were unremarkable. In January 2009, the Veteran testified at an RO hearing. He testified that he had decreased strength in his right shoulder as well as aching. In April 2009, the Veteran was afforded a VA examination. The Veteran reported that he had pain. He indicated that he did not have deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking, inflammation, limitation of motion, or flare-ups. Range of motion testing revealed flexion of zero to 160 degrees, abduction of zero to 160 degrees, and right internal and external rotation of zero to 90 degrees. The Veteran had pain with repetitive testing, but there was no additional limitation of motion with repetitive testing. X-rays revealed deformity of the distal right clavicle which might be post-traumatic or post-surgical. This was unchanged and there were no other abnormalities. The examiner noted that there were some effects on the Veteran's usual activities with mild restriction for chores, shopping, recreation, traveling, dressing and driving; moderate restriction for exercise and a prevention of sports. There were no significant effects on the Veteran's occupation. In November 2012, the Veteran testified at a Board hearing. At that time, he testified that he had limitation of motion of the right shoulder as well as a loss of strength. In addition, he reported numbness at times if he laid in a certain position. He also stated that he experienced fatigue, lack of endurance, and weakness from repetitive use. He indicated that he had reduced grip strength. His right shoulder pain was a dull ache and his shoulder had dislocated in the past. He stated that he thought he had some loss of muscle. He reported that he lost a day or two from work when his right shoulder dislocated, which happened on one occasion. In light of the Veteran's contentions that his disability worsened, the Board remanded this case. In May 2013, the Veteran was afforded a new VA examination. It was noted that the Veteran was right-hand dominant. The Veteran was able to flex and abduct to 160 degrees with pain at that point. Repetitive testing yielded the same results. There was no additional limitation of motion. The Veteran's functional loss was less movement than normal, as indicated, with pain as indicated. There was also localized tenderness of pain to palpation of the joints/soft tissue/biceps tendon. Strength testing was 5/5 on flexion and abduction. There was no ankylosis of the glenohumeral articulation. Hawkin's impingement test was negative. The empty can test was also negative. The external rotation/infraspinatus strength test and the lift-off subscapularis tests were negative. There were no mechanical symptoms and no dislocation. The crank apprehension and relocation test was negative. There was no AC joint condition or any other impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. Cross-body adduction test was negative. The Veteran had not undergone a total shoulder joint replacement. He had undergone arthroscopic surgery in 1999. He had residual scarring, but they were not symptomatic and no greater than 39 square centimeters. X-rays did not reveal arthritis, but there was deformity of the distal right clavicle, as noted on prior examination. The examiner stated that the right shoulder disability did not impact the Veteran's ability to work. The Veteran's right shoulder is considered his major upper extremity as the evidence shows he is right-handed. Under Diagnostic Code 5201, a 20 percent rating is assigned when motion of the major arm is limited to shoulder level. A 30 percent rating is assigned when motion of the major arm is limited to midway between the side and shoulder level. A 40 percent rating is assigned when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The normal range of motion of the shoulder is 180 degrees of forward elevation (flexion) and abduction, and 90 degrees of external and internal rotation. 38 C.F.R. § 4.71, Plate I. The Veteran, at worse, limitation of flexion or abduction, to 160 degrees with pain at that point, but not before. Although the Veteran complains of loss of strength, his strength testing is full. The Board acknowledges the Veteran's reports of pain; however, the evidence does not demonstrate that the Veteran's condition results in a level of diminished functional capacity consistent with the next higher rating. See Mitchell (holding that pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment). The Veteran is able to move his right arm above shoulder level. As such, his symptoms do not more nearly approximate the next level of disability impairment. The Veteran reported that he suffered from one shoulder dislocation during the course of the appeal. Dislocation of the clavicle warrants a 20 percent rating under Diagnostic Code 5203. However, the Veteran does not have recurrent dislocations and no dislocation was shown on any examination or currently. As such, the Veteran is more appropriately rated based on his limitation of motion which is his consistent, predominant, and substantiated symptom. The Board has also considered other Diagnostic Codes pertaining to disabilities of the shoulder. However, the evidence during the period on appeal does not reflect findings of ankylosis of the scapulohumeral articulation (Diagnostic Code 5200) or impairment of the humerus (Diagnostic Code 5202). Therefore, they are not applicable to the Veteran's claim and will not be discussed. The rating schedule also provides ratings under several Diagnostic Codes for scarring of the skin; however, the Veteran's scarring is asymptomatic and not of sufficient size such as to warrant a separate compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right shoulder condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that his right shoulder disability is more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu, supra. However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a); Jandreau and Buchanan, both supra. In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony, however, has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Thus, an increased rating is not warranted. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent for the left knee disability and in excess of 10 percent for the right shoulder disability. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's left knee and right shoulder disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disabilities. He has not been hospitalized and his disabilities do not interfere with employment to a marked degree, particularly since VA examiners stated that they do not impact employment. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER An increased rating in excess of 10 percent for patellofemoral pain syndrome of the left knee, is denied. An increased rating in excess of 10 percent for right shoulder tendonitis, status post arthroscopic surgery for impingement syndrome, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs