Citation Nr: 1327288 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-19 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable rating for hypermobility of the right patellar tendon with degenerative arthritis prior to March 20, 1985. 2. Entitlement to a disability rating in excess of 10 percent for hypermobility of the right patellar tendon with degenerative arthritis from March 20, 1985, to September 29, 2003. 3. Entitlement to a disability rating in excess of 20 percent for hypermobility of the right patellar tendon with degenerative arthritis from September 29, 2003, to August 1, 2004. 4. Entitlement to a disability rating in excess of 30 percent for hypermobility of the right patellar tendon with degenerative arthritis from August 1, 2004. 5. Entitlement to a separate compensable rating for right knee painful, limited motion. 6. Entitlement to an increased rating for residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis, rated as 20 percent disabling prior to August 1, 2004. 7. Entitlement to an increased rating for residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis rated as 30 percent disabling from August 1, 2004. 8. Entitlement to a separate compensable rating for left knee painful, limited motion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Procedural History In the March 2005 rating decision, the RO granted an increased evaluation of 20 percent for left knee instability under 38 C.F.R. § 4.71a, DC 5257, effective September 29, 2003. A 100 percent evaluation was assigned from June 23, 2004, to July 31, 2004, for temporary convalescence under 38 C.F.R. § 4.30. A 10 percent evaluation was assigned from August 1, 2004, (for painful motion). The RO also awarded service connection for the right knee disability, with an initial 20 percent evaluation under 38 C.F.R. § 4.71a, DC 5257, effective September 29, 2003. A 100 percent evaluation was assigned from June 23, 2004, to July 31, 2004, for temporary convalescence under 38 C.F.R. § 4.30. A 10 percent evaluation was assigned August 1, 2004, (for painful motion). In an October 2006 rating decision, the RO found clear and unmistakable error with regard to a March 1975 rating action that denied service connection for the right knee disability. The RO revised the effective date for the grant of service connection and assigned a retroactive (and noncompensable) right knee disability rating effective from March 1, 1975, to September 29, 2003. A 20 percent evaluation (for moderate instability) was continued from September 29, 2003, and a 30 percent evaluation (for severe instability) was assigned August 1, 2004. The RO also awarded a 30 percent evaluation for the left knee disability (for moderate instability) effective August 1, 2004. In a June 2009 rating decision, the RO assigned a 10 percent evaluation for the right knee (painful motion) from March 20, 1985, to September 29, 2003. A 100 percent evaluation was assigned from June 13, 1995, to September 1, 1995, for temporary convalescence under 38 C.F.R. § 4.30. And the 10 percent evaluation was continued from September 1, 1995, to September 29, 2003. In a rating decision issued in February 2013, the RO assigned a 100 percent evaluation for convalescence (following a right knee total knee replacement) effective February 18, 2010. A 30 percent evaluation was assigned from April 1, 2011, under 38 C.F.R. § 4.71, DC 5055. This appeal was previously before the Board in July 2010 and April 2012, and was remanded for additional development. The requested development has been completed, and the claims are properly before the Board for appellate consideration. FINDINGS OF FACT 1. From March 1, 1975, to September 29, 2003, the Veteran's hypermobility of the right patellar tendon with degenerative arthritis primarily manifested with painful motion; flexion to no less than 115 degrees; extension to 0 degrees; slight instability; and no clinical evidence of ankylosis. 2. From September 29, 2003, to August 1, 2004, the Veteran's hypermobility of the right patellar tendon with degenerative arthritis was primarily characterized by painful motion; flexion to no less than 135 degrees; extension to 0 degrees; moderate instability; and no clinical evidence of ankylosis. 3. From August 1, 2004, to February 18, 2010, the Veteran's hypermobility of the right patellar tendon with degenerative arthritis was primarily characterized by painful motion; flexion to no less than 94 degrees; extension to 0 degrees; and severe instability. 4. Following the period of convalescence from total right knee replacement in February 2010, the Veteran has not had chronic residuals consisting of severe painful motion or weakness. 5. Prior to August 1, 2004, the residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis, were characterized by flexion to 120 degrees; extension to 0 degrees; moderate instability; no clinical evidence of ankylosis; and painful motion due to arthritis. 6. From August 1, 2004, the residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis, have been characterized by flexion to 121 degrees, extension to 0 degrees, severe instability; no clinical evidence of ankylosis; and painful motion due to arthritis. CONCLUSIONS OF LAW 1. From March 1, 1975, to March 20, 1985, the criteria for an initial 10 percent rating, and no higher, for hypermobility of the right patellar tendon with degenerative arthritis (right knee instability) are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2012). 2. From March 20, 1985, to September 29, 2003, the criteria for a disability rating in excess of 10 percent for hypermobility of the right patellar tendon with degenerative arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, DC 5257 (2012). 3. From September 29, 2003, to August 1, 2004, the criteria for a disability rating in excess of 20 percent for hypermobility of the right patellar tendon with degenerative arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, DC 5257 (2012). 4. From August 1, 2004, the criteria for a disability rating in excess of 30 percent for hypermobility of the right patellar tendon with degenerative arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5257 (2012). 5. From March 1, 1975, to February 18, 2010, the criteria for a separate 10 percent rating, and no more, for right knee painful motion are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260 (2012). 6. Prior to August 1, 2004, the criteria for a rating in excess of 20 percent for the residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, DC 5257 (2012). 7. From August 1, 2004, the criteria for a rating in excess of 30 percent for the residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, DC 5257 (2012). 8. The criteria for a separate 10 percent rating for left knee arthritis with painful but noncompensable limitation of motion are met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in December 2003 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Notice regarding disability rating and effective date was provided in a September 2008 letter. See Dingess/Hartman, supra. With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with multiple VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that actions requested in the prior remand have been undertaken. Updated VA treatment records and private treatment records have been obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. II. Facts At a May 1975 VA examination, the Veteran reported a history of a slipped patella in service. He also reported weakness in his right leg. On physical examination, the Veteran was noted to walk without a limp. There was some hypermobility of the right knee, but there was no limitation of motion or swelling. The Veteran could squat and stand on his toes and heels without difficulty. The diagnosis was hypermobility, mild, of the right patellar tendon. At a May 1977 VA (left knee) examination the Veteran reported that on the day after the May 1975 VA examination, his right knee gave out completely and that it had periodically given out since then. Private treatment records show that on July 10, 1984, the Veteran underwent right knee surgery due to patellofemoral malalignment and chondromalacia, patella. He was noted to have had chronic, recurrent complaints of pain in his right knee since childhood. The symptoms had progressively worsened over the past several years and had been more bothersome over the preceding five months. During this time, he had limited physical activities and was unable to participate in sports due to pain and a sensation that his knee might give out. X-rays showed patellofemoral malalignment, and the Veteran had failed to respond to conservative measures. In a March 1985 statement, the Veteran reported that his knees had become increasingly troublesome over the last few years. He stated that both knees were painful and buckled daily. At a June 1985 VA examination, the Veteran reported that both knees were painful with stair climbing or bending. His knees occasionally buckled. On physical examination, both knees were normal. The Veteran's gait was intact, including on toe and heel gait. Hypermobility of both knees was noted. There was no crepitus, inflammation, or effusion bilaterally. No lateral instability was noted. A July 1994 private treatment record shows the Veteran reported that his kneecaps continued to sublux and that there was night pain, locking, and catching. There was pain on examination and a slightly positive McMurray's test in full flexion. A July 1994 MRI of the right knee showed very small joint effusion and questionable mild chondromalacia patellae versus early osteoarthritis of the patellofemoral joint. X-rays of the right knee performed in May 1995 and August 1995 showed that the patella sat normally in the groove. The Veteran underwent arthroscopy, a partial synovectomy, and a partial medial meniscectomy of the right knee in June 1995. He also underwent arthroscopic surgery on the right knee in January 1997. Private treatment records indicate that in July 1998 the Veteran was treated with a cast for a right femoral fracture. In addition to showing a femoral fracture, imaging of the right knee in October 1998 showed a complex tear of the medial meniscus with a possible meniscus flap anteriorly and a partial tear of the posterior horn. Private treatment records show that in October 1998 the Veteran underwent additional surgery on the right knee after sustaining a femoral condyle fracture, right medial meniscus tear, and patellofemoral chondromalacia in a bicycle accident. Private treatment records dated in November 1998 indicate he was improving gradually. Range of motion was 10 to 115 degrees with minimal effusion. There was no evidence of ligamentous instability. During private treatment in December 1998 the Veteran's right knee range of motion was from 0 to 140 degrees. There had been a locking episode the previous month that was resolving. Upon evaluation in January 1999, the Veteran reported occasional significant pain and swelling around the right knee. Range of motion was 0 to 140 degrees with minimal crepitation. There was no significant medial or lateral joint line tenderness and McMurray's test was negative. Treatment notes through April 1999 continued to show a normal range of motion. Private treatment records from August 25, 2003 show that the Veteran complained of pain on the lateral aspect of both knees and under the kneecaps. The pain had increased in intensity over the past year and there had been intermittent locking that had increased in frequency over the past two years. Range of motion of both knees was 0 to 120 degrees. There was intense pain with light palpation over the lateral joint lines bilaterally and mild tenderness to palpation over the medial joint line. There was significant patellar tilt on the left and less tilt on the right, significant patellar apprehension bilaterally that was worse on the left than the right, tenderness bilaterally over the medial and lateral patellar facets, and bilateral patellofemoral pain. Furthermore, there was pain with McMurray test and Lachman test was negative. The impression was bilateral patellofemoral syndrome, status post bilateral surgery. The Veteran wrote in a September 2003 statement that his pain never stopped and affected every aspect of his life. It would go from moderate to severe in a matter of seconds when his knees popped, which often occurred with turning, twisting, sitting, or standing. He had considerable pain despite taking painkillers. October 2003 private treatment records showed that the knees were unstable and tender with limited range of motion. The left was worse than the right. Physical therapy had not improved the Veteran's patellofemoral pain. At December 2003 treatment the Veteran said that his right knee locked up. He began receiving Synvisc injections for his knees around this time. The Veteran had a VA examination in December 2003. He was not using any braces or ambulatory aids for the left knee. There was some increased pain with repetitive use and no difficulty with activities of daily living or flare-ups. Gait was normal and there was no tenderness to the left knee on palpation. McMurray's test was negative and there was no effusion. Range of motion of the left knee was extension 0 to 135 degrees. The examiner felt that the functional impairment was between slight and moderate. The Veteran said at the examination that he had had right knee problems all along and that the knee bothered him after the injury to the left knee. March 2004 VA treatment records show that the Veteran complained of a 30-year history of bilateral knee pain. Objectively, the right knee had no effusion, some crepitus, and patellar maltracking. There was no laxity and a McMurray's test was negative. The left knee had no effusion, minimal crepitus, no laxity, and patellar maltracking. The range of motion was full in both knees. It was noted that the Veteran was on a high dose of narcotics for control of pain. In June 2004 the Veteran underwent bilateral knee arthroscopies with partial medial meniscectomies and removal of hardware from the left knee secondary to medial meniscal tears. The RO assigned temporary 100 percent evaluations for convalescence following these procedures. September 2004 x-rays showed evidence of degenerative arthritis in the knees. On VA orthopedic consult in November 2006, the left knee had no ligamentous laxity. A bone scan from December 2006 private treatment showed mild to moderate degenerative arthritic changes in the knees. In September 2008 the Veteran had a peripheral nerve VA examination. He reported having pain in his right knee since the 1980s. The knees flared up with weather changes and when getting on and off the toilet, bending, and walking up or down stairs. He did not use assistive devices and he took oxycodone at least once daily. The knees were each unstable approximately twice a week but the Veteran did not fall and the knees did not lock. Range of motion of both knees was 0 to 138 degrees without pain. There was no change after three repetitions due to pain, fatigue, weakness, incoordination, or lack of endurance. X-rays of the knees showed degenerative arthritis, spurs, and evidence of previous surgery. The Veteran had a VA examination for his knees in December 2009 at which he reported pain and dysfunction in the right knee that had progressed in severity since military service. The right knee gave way twice a month but did not lock, and the Veteran was impaired in kneeling, squatting, and climbing stairs. He had constant, moderate pain with severe flare-ups on a daily basis that sometimes lasted for several hours. The Veteran could not walk for more than a tenth of a mile and could only stand for a half hour. An October 2009 x-ray of the right knee showed degenerative changes, particularly in the lateral compartment. Range of motion of the right knee was flexion to 127 degrees and extension to 10 degrees. After three repetitions range of motion was 15 to 128 degrees. The knee was tender and McMurray's test was positive. A Lachman's test was negative and there was no lateral instability. The major functional impact was pain, fatigue, lack of endurance, or incoordination. There was a loss of function with use and no inflammation or neoplasm. The impression was degenerative joint disease of the right knee with mild instability. The examiner felt that the Veteran could not do prolonged standing, walking, frequent squatting, kneeling, stair climbing, or running. Private treatment notes show that in February 2010 the Veteran underwent a total right knee replacement. The Veteran underwent another VA examination for his knees in September 2010. He rated his daily pain as ten out of ten with weakness, stiffness, deformity, and instability. The examiner noted that the pain in both knees was associated with weakness, fatigability, and incoordination at all times. The Veteran also reported that his overall instability had been lessened by surgery, but his knees gave way approximately six times a month without locking. The Veteran reported almost constant effusion without episodes of dislocation or subluxation. He also reported that he used a walker and a wheelchair, although he did not bring the latter to the examination. He reported that he could stand for approximately 15 minutes and could walk a maximum of 500 yards. On physical examination, the examiner noted no evidence of swelling, heat, redness, tenderness, drainage or effusion. The left knee had instability of the medial and lateral collateral ligaments. The right knee medial and lateral collateral ligament to valgus/varus, as well as anterior and posterior cruciate Lachman and McMurray tests, were negative or within normal limits secondary to the total knee replacement with distinct stability now with status postoperative of total knee replacement for the right knee. The examiner noted that the right knee was stable on manipulative procedures as noted, but when ambulating the Veteran had a complaint of instability. With respect to the hypermobility, the right knee was no longer unstable, status post the total knee replacement. Range of motion of the right knee was flexion to 94 degrees on the first measurement and 64 degrees on the second and third. Pain began at 25 degrees. Extension was to 0 degrees. The left knee had flexion to 121 degrees with pain at 90 degrees. On the third repetition flexion was to 115 degrees. Extension was to 0 degrees. The examiner's diagnosis was right knee post total knee replacement no longer unstable; left knee demonstrates distinct instability. VA treatment records from September 2010 to the present show a normal range of motion with some crepitation in the knees. III. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2012). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). Where an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. However, consideration of the appropriateness of "staged rating" is also required. Hart v. Mansfield, 21 Vet. App. 505 (2007). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 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 diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating 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, and 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. 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 conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under DC 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (DC 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Also applicable is DC 5055 (prosthetic knee replacement). A minimum rating of 30 percent is assigned after replacement of the knee joint. A rating of 60 percent is assigned with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A rating of 100 percent is assigned during the year following implantation of the prosthesis. Intermediate ratings between 30 percent and 60 percent are assignable by analogy under DCs 5256, 5261 or 5262. Other diagnostic codes pertaining to the knee are DC 5256 (ankylosis), DC 5262 (nonunion or malunion of tibia and fibula) and DC 5263 (genu recurvatum). These DCs are not applicable because the Veteran does not exhibit the relevant pathologies. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 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). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). A. Right Knee Based on a review of the record and resolving all reasonable doubt in the Veteran's favor, the Veteran is entitled to an initial rating of 10 percent, and no higher, for slight right knee instability from March 1, 1975, to March 20, 1985, under 38 C.F.R. § 4.71a, DC 5257. There are multiple subjective reports of instability during this period. At the May 1977 VA examination the Veteran reported that his right knee had periodically given out since the May 1975 VA examination. Private treatment records dated in 1984 showed patellofemoral malalignment and the Veteran's report of a longstanding sensation that his knee might give out. In a March 1985 statement, the Veteran reported that his knee buckled daily. There are also several clinical findings of patellofemoral malalignment and mild hypermobility of the knee. In light of the clinical findings of patellofemoral malalignment and mild hypermobility, and the Veteran's consistent and credible reports of instability over this lengthy period, the Board is resolving all doubt in the Veteran's favor to assign a rating of 10 percent for slight instability. An even higher rating of 20 percent, for moderate instability, is not warranted as the only objective evidence of right knee instability for this period appears to be the findings of patellofemoral malalignment and mild hypermobility and the Veteran did not require medical treatment for any falls. The evidence does not, however, warrant disability ratings in excess of 10 percent from March 20, 1985, to September 28, 2003; in excess of 20 percent from September 29, 2003, to July 31, 2004; or in excess of 30 percent from August 1, 2004, under 38 C.F.R. § 4.71a, DC 5257. For the period from March 20, 1985, to September 28, 2003, a 10 percent rating for slight instability is appropriate. The record from this period shows that the Veteran complained of some instability in the knees; however, no objective evidence of instability was noted at the June 1985 VA examination. Also, the private treatment records dated in November 1998 showed no evidence of ligamentous instability. A July 1994 private treatment record showed only slightly positive McMurray's test in full flexion. In November 1998, a treating provider noted no evidence of ligamentous instability. An August 2003 private treatment record showed pain on McMurray's test and some patellar tilt in the right knee. The VA and private treatment records are negative for any clinical findings of moderate or severe subluxation or give-way of the knee and the Veteran did not report any episodes of falling. This evidence is indicative of no more than mild instability. For the period from September 29, 2003, to August 1, 2004, the currently assigned 20 percent rating for moderate instability is appropriate. The record reflects subjective complaints of pain, occasional knee buckling, subluxation, locking, and catching. The private treatment records dated in October 2003 showed both knees were unstable. The Veteran denied use of knee braces at the December 2003 VA examination; his gait was normal; and McMurray's test was negative. The VA and private treatment records are negative for any clinical findings of severe subluxation or instability of the knee and the Veteran did not report any episodes of falling. On evaluation in March 2004 there was no right knee laxity and a McMurray's test was negative, though patellar maltracking was present. This evidence is indicative of no more than moderate instability. For the period from August 1, 2004, to February 18, 2010, the 30 percent rating for severe instability is appropriate. The 30 percent rating reflects the maximum evaluation that is available. Any functional limitations that the Veteran had were contemplated in this evaluation, and no more than the maximum 30 percent rating under DC 5257 is possible. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board has considered whether the evidence warrants higher ratings for limitation of motion under DCs 5260 (limitation of flexion) and 5261 (limitation of extension) for any time period covered by this appeal, but finds that it does not. Throughout the entire appeal, the Veteran's right knee disability has been manifested by characteristic pain, and some limitation of motion on extension and flexion. However, separate compensable ratings for limitation of flexion and/or limitation of extension are not warranted even with consideration of the DeLuca precepts. Diagnostic Code 5260 requires that flexion be limited to 45 degrees for a 10 percent evaluation. 38 C.F.R. § 4.71a. The record does not show that flexion has ever been limited to 45 degrees or less, including after repetitive movement. Therefore, no more than a zero percent evaluation would be warranted under DC 5260, even with consideration of pain, weakness, fatigue, and flare-ups of symptoms. The cumulative record shows that extension was primarily not limited to 10 degrees, as is required for a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5261. With the exception of two instances, right knee extension has been full. Although extension was limited to 10 degrees in November 1998; this was only a month after the Veteran underwent surgery following a bicycle accident. In December 1998, the Veteran demonstrated full right knee extension. Also, while extension of the right knee was limited to 10 degrees at the December 2009 VA examination, this instance fails to accurately reflect the overall disability picture as the cumulative evidence shows that extension has otherwise been full to 0 degrees since March 1, 1975. The cumulative disability picture does not warrant a separate compensable rating for right knee extension at any time during the appeal. Although the Veteran's limited motion is not compensable under DCs 5260 and 5261, in light of the Veteran's documented pain and functional impairment, as well as the mandate of 38 C.F.R. § 4.59 and the Court's decision in Lichtenfels, as well as VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), and VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004), the criteria for a separate 10 percent rating has been shown. The Veteran has competently and credibly reported having painful right knee motion throughout the entire appeal period. This pain reportedly limited physical activities and precluded participation in sport activities (i.e. functional loss). Accordingly, the criteria for a separate compensable rating for painful motion/slight functional loss were met from March 1, 1975, to February 18, 2010. This 10 percent rating adequately portrays the Veteran's functional loss due to pain, weakened movement, and excess fatigability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and demonstrates that any such functional loss is contemplated. From February 18, 2010, a separate compensable rating cannot be assigned in conjunction with DC 5055 due to pyramiding. The Board has also considered whether separate or higher evaluations are warranted under 38 C.F.R. § 4.71a, DCs 5258 and 5259. Although pain has been present throughout the appeal, there have been no objective findings of locking and effusion into the right knee joint; thus DC 5258 is inapplicable. Turning next to DC 5259, the Board finds that while the Veteran is status post meniscectomy of the right knee and status post total knee replacement, he is not entitled to a separate 10 percent rating under this diagnostic code. This is because there is no other symptomatology associated with the removal of semilunar cartilage that has not been accounted for by the 10 percent ratings under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and DIAGNOSTIC CODE 5257. To also grant a separate 10 percent rating under DC 5259 in this case would amount to impermissible pyramiding. 38 C.F.R. § 4.14. Finally, a higher rating is not warranted for the right total knee replacement, which is evaluated at 30 percent from April 1, 2011, under 38 C.F.R. § 4.71, DC 5055. There is no indication of chronic residuals showing entitlement to a 60 percent rating (i.e. severe painful motion or severe weakness). The symptoms demonstrated at the September 2010 VA examination and in the subsequent VA treatment records are contemplated in the 30 percent evaluation assigned for the right knee replacement. See DeLuca, supra; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Also, there is no provision in the rating schedule for concurrent ratings under DC 5055 (knee replacement) and DC 5257 (instability). The Board has found no other diagnostic codes which would provide higher or separate ratings for the Veteran's right knee disability. No evidence of ankylosis; impairment of the tibia and fibula; or genu recurvatum has been noted in any of the treatment records or VA examinations. Therefore, none of those diagnostic codes are factually applicable. See 38 C.F.R. § 4.71a, DCs 5256, 5262, and 5263; see also Butts v. Brown, 5 Vet. App. 532, 539 (1993). B. Left Knee The Veteran seeks higher ratings for his service-connected left patella with hypermobility of the left patellar tendon and degenerative arthritis that is rated 20 percent disabling prior to August 1, 2004; and 30 percent disabling thereafter, under DC 5257. The left knee disability was assigned a temporary 100 percent evaluation from June 23, 3004 to August 1, 2004, pursuant to 38 C.F.R. § 4.30. The evidence does not warrant an evaluation in excess of 20 percent based on instability, for the period prior to August 1, 2004. See 38 C.F.R. § 4.71a, DC 5257. The private treatment records prior to August 2004 did not reflect findings of severe left knee instability. The December 2003 VA examiner felt that the functional impairment of the left knee disability was between slight and moderate. The Veteran's gait was normal and there was no difficulty with activities of daily living. Also, the March 2004 VA treatment record shows no laxity was present and McMurrays test was negative. Therefore, the recurrent subluxation and lateral instability of the left knee was not severe, as required for a 30 percent evaluation. See 38 C.F.R. § 4.71a. The Veteran does not qualify for an evaluation in excess of 30 percent after August 1, 2004, as 30 percent is the maximum evaluation available under DC 5257. 38 C.F.R. § 4.71a. Any functional limitations that the Veteran had were contemplated in this evaluation, and no more than the maximum 30 percent rating under DC 5257 is possible. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board has considered whether the evidence warrants higher ratings for left knee limitation of motion under diagnostic codes 5260 (limitation of flexion) and 5261 (limitation of extension) for any time periods covered by this appeal, but finds that it does not. Throughout the entire appeal, the Veteran's left knee disability has been manifested by characteristic pain, and some limitation of motion on extension and flexion. However, separate compensable ratings for left knee limitation of flexion and/or limitation of extension are not warranted even with consideration of the DeLuca precepts. Diagnostic Code 5260 requires that flexion be limited to 45 degrees for a 10 percent evaluation. 38 C.F.R. § 4.71a. The record does not show that left knee flexion has ever been limited to 45 degrees or less, including after repetitive movement. Therefore, no more than a zero percent evaluation would be warranted under DC 5260, even with consideration of pain, weakness, fatigue, and flare-ups of symptoms. The record also does not show that extension limited to 10 degrees, as is required for a 10 percent evaluation under DC 5261. Indeed, the range of motion of the left knee was noted to be limited during a private evaluation in October 2003, but at the December 2003 VA examination it was from 0 to 135 degrees. Range of motion of the left knee at the September 2008 VA examination was from 0 to 138 degrees, including upon repetition. At the September 2010 examination, flexion of left knee was possible to no less than 115 degrees, including on repetition. Extension was full, at 0 degrees, including on repetition. Although the Veteran's limitation motion are not of a level compensable under DCs 5260 and 5261, in light of the Veteran's documented pain and functional impairment, as well as the mandate of 38 C.F.R. § 4.59 and the Court's decision in Lichtenfels, as well as VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), and VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004), the criteria for a separate 10 percent rating has been shown. The 10 percent rating adequately portrays the Veteran's functional loss due to pain, weakened movement, and excess fatigability in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59, and demonstrates that any such functional loss is contemplated. Separate or higher evaluations are not warranted under 38 C.F.R. § 4.71a, DCs 5258 and 5259. As indicated, a 20 percent rating is warranted under DC 5258 when there is semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. In this case, there is no evidence of frequent episodes of effusion, in addition to the subjective locking and pain that has been noted. The Veteran has had multiple arthroscopies on his left knee. However, he is not entitled to a separate 10 percent rating under DC 5259 because there is no other symptomatology associated with the removal of semilunar cartilage that has not been accounted for by the 10 percent rating under DC 5257 and the separate 10 percent rating for painful motion. To also grant a separate 10 percent rating under DC 5259 in this case would amount to impermissible pyramiding. See 38 C.F.R. § 4.14. No other diagnostic codes would provide higher or separate ratings for the Veteran's left knee disability. No evidence of ankylosis; impairment of the tibia and fibula; or genu recurvatum has been noted in any of the treatment records or VA examinations. Therefore, none of those diagnostic codes are factually applicable. See 38 C.F.R. § 4.71a, DCs 5256, 5262, and 5263; see also Butts v. Brown, 5 Vet. App. 532, 539 (1993). With respect to both knees, due consideration has been given to staged ratings; however, higher evaluations are not warranted for either knee, for any portion of the time periods under consideration. In addition, the Board finds that the current ratings adequately portray the Veteran's instability and functional loss due to pain, as well as the degree of loss of function due to weakened movement, excess fatigability, or incoordination in accordance with 38 C.F.R. §§4.40, 45, and4.59, and demonstrates that any such functional loss is contemplated by the compensable ratings currently assigned. The Board has also considered whether a referral for an extraschedular evaluation is warranted with regard to the Veteran's service-connected knee disabilities. The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-1996 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provides for additional or more severe symptoms with regard to the Veteran's knee disabilities, than are currently shown by the evidence; thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral for extraschedular consideration is not warranted. Additionally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. However, there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Veteran is already in receipt of a TDIU. ORDER Prior to March 20, 1985, an initial rating of 10 percent, and no higher, for hypermobility of the right patellar tendon with degenerative arthritis is granted. From March 20, 1985, to September 28, 2003, a disability rating in excess of 10 percent for hypermobility of the right patellar tendon with degenerative arthritis is denied. From September 29, 2003, to July 31, 2004, a disability rating in excess of 20 percent for hypermobility of the right patellar tendon with degenerative arthritis is denied. From August 1, 2004, a disability rating in excess of 30 percent for hypermobility of the right patellar tendon with degenerative arthritis is denied. From March 1, 1975, to February 18, 2010, a separate 10 percent rating for right knee painful limited motion is granted. Prior to August 1, 2004, an increased rating for residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis is denied. From August 1, 2004, an increased rating for residuals of dislocation of the left patella, with hypermobility of the left patellar tendon and degenerative arthritis is denied. A separate 10 percent rating for left knee painful limited motion is granted. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs