Citation Nr: 1328447 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-00 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection/assignment of a separate disability rating for a left tibia disorder, to include as secondary to service-connected osteoarthritis of the left knee, status post excision of osteochondroma. 2. Entitlement to an initial compensable disability evaluation for osteoarthritis of the left knee, status post excision of osteochondroma, prior to May 29, 1998 and in excess of 10 percent disabling prior to June 19, 2001. WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active military duty from September 1979 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Muskogee, Oklahoma, denying the Veteran's claims. The Veteran requested and was afforded a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC in March 2007. A transcript of this hearing is associated with the claims file. This matter was previously denied by the Board in an October 2007 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in October 2009, the Court issued a Memorandum Decision confirming the Board's October 2007 denial of entitlement to an effective date prior to April 21, 1986 for the grant of service connection for the residuals of a left knee injury and vacating the October 2007 Board decision including to the extent of its denial of the claims currently on appeal. The case was then remanded by the Board in May 2010 for additional evidentiary development. The Board in a December 2010 decision then denied the claims on appeal, which at the time included the issue of entitlement to an initial compensable disability evaluation for osteoarthritis of the left knee, status post excision of osteochondroma prior to June 19, 2001 and entitlement to service connection for a left tibia disorder, to include as secondary to the service connected osteoarthritis of the left knee. The Veteran again appealed the claim to the Court, which by a March 2012 Memorandum Decision vacated the Board's December 2010 decision as to the appealed issues. An additional issue of entitlement to a disability rating in excess of 10 percent disabling as of June 19, 2001 was remanded by the Board in December 2010, and thus was not part of the appeal to the Court. The Board later adjudicated this issue in a December 2011 decision, which was not appealed to the Court, and thus is not before the Board. The case was returned to the Board for action consistent with the March 2012 Memorandum Decision, and it again remanded the matter to the RO in August 2012 for development consistent with the Court's directives. While the matter was on remand, the RO, via an August 2013 rating decision, granted service connection for Osgood- Schlatter's disease affecting the left knee. The RO determined that this grant satisfied the appeal of the issue of entitlement to service connection for a left tibia disorder. However the actions of the RO in effectuating this grant do not satisfy this appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). The instant case is distinguishable from Grantham for the following reasons. The RO proceeded to merge the Osgood-Schlatter's disease with the already service-connected arthritis disability of the right knee, thereby rating it as a single disability, with an initial 10 percent rating assigned effective October 27, 2004 with a temporary 100 percent rating from September 22, 2010 to November 1, 2010, with a 10 percent rating resumed as of November 1, 2010. Because this service connected disability was merged and rated as a single disability with the arthritis, rather than as a separate service connected-disability, the Board finds that the appeal of the service connection claim for the left tibia disorder is not satisfied and must be further addressed. The Board has recharacterized this issue to reflect the question of entitlement to service connection with a separate disability rating to be assigned for the left knee Osgood-Schlatter's disease. The August 2013 rating also partially granted the initial rating claim for entitlement to a 10 percent rating prior to June 19, 2001, when it assigned a 10 percent rating for the left knee disorder effective from May 29, 1998 (according to the rating codesheet), although it advised the Veteran that the 10 percent rating was assigned from May 28, 1998. As this is not a complete grant of the benefits on appeal, the matter continues to be before the Board, which has recharacterized the issue to reflect the staged increase to 10 percent prior to June 19, 2001. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to service connection/assignment of a separate disability rating for a left tibia disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From initial entitlement to May 29, 1998, the Veteran's left knee disability was manifested by a subjective history of complaints of left knee pain, but with no objective evidence of treatment for knee problems or of any limitation of motion, ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, malunion of the tibia and fibula, genu recurvatum, or arthritis established by X-ray findings. 2. From May 29, 1998 to June 19, 2001, the Veteran's left knee disability was manifested by flexion to 95 degrees, extension to 0 degrees, and pain; it was not manifested by flexion limited to 45 degrees or less, extension limited to 10 degrees or less, ankylosis, recurrent subluxation or lateral instability, dislocated or removed semilunar cartilage, malunion of the tibia and fibula, genu recurvatum, or arthritis established by X-ray findings. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial compensable disability rating for osteoarthritis of the left knee, status post excision of osteochondroma, prior to May 29, 1998, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.45, 4.71a, Diagnostic Codes 5003, 5015, 5256-63 (effective from 1986-2012). 2. The criteria for establishing entitlement to a disability rating in excess of 10 percent disabling for osteoarthritis of the left knee, status post excision of osteochondroma, from May 19, 1998 to June 19, 2001, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1- 4.14, 4.45, 4.71a, Diagnostic Codes 5003, 5015, 5256-63 (effective from 1986-2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in February 2005, February 2007, June 2009 and August 2012 addressed all notice elements listed under 3.159(b)(1) and the February 2005 letter was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Even though the Veteran was not provided with the Dingess requirements (specifically, how disability ratings and effective dates are assigned) until after the initial adjudication of that claim in the February 2007 letter, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The case was most recently adjudicated by an August 2013 SSOC. The Veteran's increased disability rating claim arises from his disagreement with the initial disability evaluations assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. VA treatment records to the extent possible, have been obtained for the period from 1986 to 2001. VA attempted to obtain additional treatment records for the Veteran from 1986 to 2001, but no additional records were located and the Veteran denied receiving any private treatment for his left knee during this time period. The Secretary in pleadings before the Court conceded that the Board should have considered the need for a retrospective VA examination to address the severity of knee disability for the rating interval prior to June 19, 2001, with due regard for the application of Chotta v. Peake, 22 Vet. App. 80 (2008) (addressing the need for a "retrospective medical opinion" to ascertain past severity of disability where a rating must be assigned for a long-ago period and insufficient evidence is presented to support rating the disability over that period). In August 2013, such an examination was conducted that provided such retrospective medical period regarding the severity of the left knee disability during the timespan in question. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2010) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488 . Here, during the March 2007 hearing, the undersigned Veterans Law Judge explicitly noted that the element lacking in the Veteran's case was service which included wartime service. Bryant, 23 Vet. App. at 488. The Board also then noted, in effect, that there was little that could be done in this case in the face of applicable criteria for pension under existing law. Because the Veterans Law Judge informed the Veteran of what was required to sustain the claim and informed that no submission could satisfy the required criteria, the notice requirements under Bryant were effectively satisfied. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson, 12 Vet. App. at 126 (1999). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of 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. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service- connected musculoskeletal disorders pertinent to the Veteran's left knee disability, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The Board notes that there have been no major substantive revisions to the applicable Diagnostic Codes pertaining to this Veteran's knee disability throughout the pendency of this claim, which dates back to 1986 and focuses specifically on the left knee disability during the period specifically between April 21, 1986 and June 19, 2001. Opinions issued by the VA Office of General Counsel during the pendency of this appeal that do pertain to this matter will be addressed below. According to Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability of the knee, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee. A 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability of a knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2012). 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 5003 provides that degenerative arthritis established by x-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003. Diagnostic Code 5003 notes that in the absence of limitation of motion, rate as below: 20 percent with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations; and 10 percent with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) under Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Diagnostic Code 5015, for new growths of bone, benign, provides that such disease will be rated on limitation of motion of affected parts, as degenerative arthritis. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees and a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating will be assigned for limitation of flexion to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees and a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating will be assigned for limitation of extension to 15 degrees. Id at Diagnostic Code 5261. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). During the pendency of this appeal, the VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X- ray findings and limitation of motion, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). VA's General Counsel has additionally held that separate ratings may be assigned, as well, for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. The Veteran was discharged from active duty in September 1980. The Veteran subsequently filed a claim of service connection for a left knee disorder on April 21, 1986 that was never adjudicated. Subsequent adjudicatory actions affixed the date of this claim as the effective date for service connection for the left knee arthritis. The issue to be adjudicated is whether a compensable rating is warranted for this disorder prior to May 29, 1998 and in excess of 10 percent disabling prior to June 19, 2001. Among the evidence pertaining to this matter, a February 1980 service treatment record demonstrates that the Veteran was hospitalized for the excision of an osteochondroma of the left femur during active duty. The January 1980 bone scan diagnosing this condition did not include any other significant bone or joint findings apart from this osteochondroma. Following this operation, the Veteran was given 10 days of convalescent leave in March 1980. The Veteran was again hospitalized in March 1980 for a possible septic knee, treated with antibiotics. Subsequent examination for Medical Board report revealed the Veteran to be in minimal distress, though he walked with crutches and an antalgic gait. Range of motion measurements demonstrated extension to 0 degrees and flexion to 95 degrees and there was no evidence of instability or effusion. There was some tenderness and patellar crepitus. A 1 inch quadriceps atrophy of the left knee was noted. X-rays revealed no narrowing of the joint or any stress fracture. He was opined to have had a serious postoperative infection after excision of his symptomatic osteochondroma, and was deemed unable to return to full unrestricted duty. The diagnosis was as follows: 1. Septic left knee following excision of symptomatic left osteochondroma of the left femur, DNEPTE. 2. Chondromalacia patella, EPTE 3. Osgood-Schlatter's disease, EPTE 4. Arthralgia left knee secondary to diagnoses 1, 2, and 3. The same diagnoses were listed in other Medical Board documents. Post service, but prior to the effective date of his initial claim for service connection filed in April 1986, a February 1981 VA medical certificate reveals that the Veteran sought treatment for complaints of neck, pain, back pain and pain in both legs following a confrontation with police and security officials. He had minor abrasions in various areas of his body including his left tibial tubercle. All joints moved normally however. He sat and stood with great effort and he limped slightly on his right leg. In a December 1992 statement, the Veteran indicated that he had only been treated for his knee once since his separation from active duty, and this was in 1986 at the VA Medical Center (VAMC) in Reno. The VAMC in Reno, Nevada notified VA in July 1993 that they had no records available matching the Veteran's name and Social Security number. The Veteran again filed a claim for service connection for a left knee disability in June 2001, and in an October 2002 statement, the Veteran indicated that he did not have any additional evidence in support of his claim, since records from the Washoe Health System from 1980 had been purged. An April 1986 record indicated that the Veteran was seeking mental health treatment with no mention of knee problems. Likewise appointment records for VA treatment between January 1987 and June 1990 are silent as for whether any appointments pertained to knee problems. The earliest medical evidence of record of treatment for the left knee during the time period pertinent to this appeal (from April 21, 1986 and June 19, 2001) is a May 29, 1998 outpatient treatment record in which the Veteran was complaining of pain in the medial area of the left knee joint, while sitting and in the entire joint when standing. The history of an osteocondroma surgery with postoperative infection was noted. No objective findings were then noted. He was assessed with history of pain left knee and previous surgery and was prescribed Ibuprofin 600 and was to return if his symptoms persisted. This record formed the basis for the effective date of the 10 percent rating being changed to May 29, 1998. An October 2000 VA outpatient treatment record noted that the Veteran previously had surgery on his left knee but did not note chronic knee condition. While outside the period in question, the November 2002 VA examination which is closest in time to the period on appeal ending on June 19, 2001 is addressed as a point of reference for the severity of disability around this time period. In this examination, the Veteran informed that he had pain in the left knee which was a constant dull ache, rated at a 4 on a 1 to 10 pain scale, as well as intermittent swelling. He also had pain in the right knee, but to a lesser degree. The condition was exacerbated by wet, cold weather. The Veteran used no supportive or assistive device, including no knee brace or cane. He reported working in the upholstery business and asserted that this increased his knee pain. As an additional limitation, he reported being unable to run. He took pain medication for his back which also helped his knees, producing a reported 50 percent improvement. Upon physical examination, the examiner identified a moderate click with palpation on either side of the left knee with flexion and extension, as contrasted with mild clicking similarly detected in the right knee. Range of motion of the left knee was from zero to 140 degrees without complained of pain anywhere in the range of motion. The knee was stable and musculature in the lower extremities was symmetrical and well-developed. The Veteran was noted to dress independently, and was observed walking fifty feet down the hall with heel and toe strike, with a brisk stride, and without limp. The Veteran's March 2007 hearing testimony described one episode of treatment for the left knee in 1986 at the VA in Reno, Nevada, with pain medicine administered. He indicated that he was diagnosed with arthritis around 2000. A witness at the hearing described being friends with the Veteran since 1995 and recalled seeing the Veteran "rolling around on the floor in pain" due in part to pain in his knees as well as due to back pain. He indicated that he observed the Veteran use medications for pain and also being unable to work. The report of an August 2013 VA examination to address the nature and severity of the left knee disorder classified as osteoarthritis for the period prior to June 19, 2001 included a review of the claims file and examination of the Veteran. The examiner noted that the history given by the Veteran was identical to that recorded by a VA examiner (Dr H) in 2008. (The history from that December 2008 examination is silent for medical evidence of knee problems between the end of 1980 and May 29, 2008, but notes the Veteran reported treatment in 1986). The examiner noted that there was no more medical evidence discovered or submitted and no additional medical evidence existed from between 1986 and 2001 except for the May 1998 treatment note that was already known to the Board. The examiner noted that several times throughout the claims file, the Veteran essentially stated he had nothing new to submit. The examiner made note of the history of the Veteran's surgery in February 1980 for osteochondroma excision, with a subsequent postoperative infection of the knee during convalescence. The examiner observed that the Veteran appeared to desire a rating for the right knee disorder under Diagnostic Codes 5299-5259 (Diagnostic Code for removal of semilunar cartilage, symptomatic) that was noted on his DD-214 upon discharge from service. The examiner reviewed the service treatment records to determine whether his surgery had included removal of a medial meniscus at the same time he had removal of the left distal osteochondroma. It was noted that an admission note from the Washoe Medical Center in March 1980 had written down a history of "recent knee surgery with meniscectomy and septic knee" as well as "medial suture line with sutures." However there was no medical substantiation that a meniscectomy was ever done, and the examiner speculated that this history of meniscectomy may have been drafted in error by that treating hospital. The examiner stated that the incision present on the Veteran's knee, a 6 inch vertical lateral leg and distal thigh scar, was inconsistent with the type of incision that would likely have been made performing a meniscectomy in 1980. The examiner speculated further that the rating code shown on the DD-214 would likely have been used as an analogous rating for the residuals of the osteochondroma excision and guessed that this was probably not explained to the Veteran. While the examiner determined that the evidence did not support a finding that the Veteran's residuals of the osteochondroma surgery also included meniscectomy, the examiner suggested that the Veteran's diagnoses on medical discharge (other than the Osgood-Schlatter's disease which was the subject of a separate opinion and adjudication), should be considered as possible residuals for consideration of assigning a compensable rating during the period in question between April 1986 and June 2001. These diagnoses included the chondromalacia and arthralgia. Again the examiner noted that there was a complete lack of medical evidence between 1986 and June 2001 for any left knee disability, except for the May 29, 1998 VA medical record that documented complaints of left knee pain. After a review of the evidence, the Board finds that the evidence fails to establish that a compensable rating is warranted for the Veteran's right knee disorder for the period prior to May 29, 1998, and a rating in excess of 10 percent is not warranted from May 29, 1998 to June 19, 2001. This determination not only includes consideration of the Diagnostic Codes for arthritis and loss of motion (Diagnostic Codes 5003, 5260 and 5261), but also any other potentially applicable Diagnostic Codes. While service connection has been in effect for arthritis of the knee since April 21, 1986, the Board notes that there was no X- ray evidence of arthritis at any time prior to June 19, 2001. There is also no evidence of any loss of any motion of the right knee, much less a noncompensable loss of motion, or painful motion shown during this time period. While a 10 percent rating could be granted under Diagnostic Code 5003 for X-ray evidence of arthritis without loss of motion, the very lack of X-ray evidence of any arthritis renders consideration of a 10 percent rating under this criteria wholly inapplicable prior to May 29, 1998. The Code specifically requires such X-ray evidence of arthritis before a 10 percent rating will be allowed. For a 20 percent rating, occasional incapacitating exacerbations are needed for X-ray evidence of arthritis in the absence of compensable loss of motion. Again as no evidence of motion loss or incapacitating exacerbations are shown, a compensable rating prior to May 29, 1998 and a rating in excess of 10 percent from May 29, 1998 to June 19, 2001, is not otherwise warranted under Diagnostic Code 5003 or otherwise under the criteria for loss of motion. There is simply no medical evidence of any compensable degree of disability of the left knee prior to May 29, 1998, and there is inadequate lay evidence to support finding a compensable rating. The Board notes that the Veteran's original claim of April 1986 and the subsequent written statement of December 1992 in which he reported one instance of treatment for the knee in April 1986 provide no information as to the current level of disability. Likewise he did not describe any prior history of problems with his knee during the period in question in a May 2003 statement, but simply expressed his belief that he should receive a 10 percent rating because he apparently had been under the impression that a lifetime 10 percent rating would be in effect for the disability under VA Codes 5299-5259 after his disability severance was repaid. None of his subsequent written statements or his March 2007 hearing testimony, including those arguing for an earlier effective date for service connection provide any insight as to what his specific knee symptoms were back in the period between 1986 and 1998. The only lay evidence of note that provided any information regarding the Veteran's left knee disorder during the period of time was the testimony from the Veteran's friend who described witnessing him "rolling around on the floor in pain" apparently due to pain in multiple areas of his body, including the right knee, and went on to describe the Veteran using pain medication and missing work. The testimony from this witness is too vague to provide solid objective lay evidence as to the severity of the Veteran's left knee symptoms and its impact on his function as the description referenced pain from other areas of his body besides the right knee. Pain is not sufficient to warrant a compensable disability rating in this case. In addition, this testimony is contradicted by the objective evidence of record. It does not appear that the Veteran sought medical treatment prior to May 1998 for his left knee disability. While a VA examination was undertaken in August 2013 to include a restrospective review into the extent of the Veteran's left knee disability through the pertinent period prior to the May 29, 1998 date which a 10 percent rating was assigned, for the period thereafter leading up to June 19, 2001, which remains on appeal. The examiner noted the total absence of any pertinent medical evidence over this time period and also noted that the evidence did not support finding that a 10 percent rating should be granted under the criteria for removal of semilunar cartilage under Diagnostic Code 5259. The examiner provided rationale for this opinion finding the evidence did not indicate that meniscal surgery took place during the surgery to remove the osteochondroma. No other surgery is shown to have taken place. The Board notes that the examiner in the August 2013 VA examination suggested the possibility of compensating the left knee arthritis disability (without X-ray evidence of arthritis) under alternate diagnoses that were shown in service in 1980, to include in pertinent part chondromalacia and arthralgia. The Board notes that chondromalacia and arthralgia are not listed in the rating schedule, and thus would be evaluated under analogous criteria. 38 C.F.R. § 4.20. To the extent that a compensable rating for arthritis is not shown during the period prior to May 29, 1998, and a rating in excess of 10 percent is not shown for arthritis from May 29, 1998 to June 19, 2001, the Board shall consider other analogous criteria. For the disability to be rated analogous to other disability of the knee under Diagnostic Code 5257 there would need to be evidence of slight recurrent subluxation or lateral instability of a knee to warrant a compensable rating prior to May 29, 1998 and of moderate recurrent subluxation or lateral instability as of that date up to June 19, 2001. There is simply no evidence suggestive of any instability or subluxation in the available evidence. The Board has also considered other potentially applicable Diagnostic Codes when considering whether a compensable rating is warranted prior to May 29, 1998 and a rating in 10 percent is warranted as of that date to June 19, 2001. The Board finds that Diagnostic Code 5256 is not applicable as ankylosis has not been shown. Diagnostic Code 5258 is not applicable as there is no evidence of dislocated semilunar cartilage. Diagnostic Code 5262 is not applicable as impairment of the tibia and fibula is not shown, and Diagnostic Code 5263 is not applicable as genu recurvatum is not shown. In regards to Diagnostic Code 5259 for symptomatic removal of semilunar cartilage, which this disorder had been rated as previously when the Veteran was discharged from service in 1980, the August 2013 VA examiner's opinion, as discussed above, has provided an adequate discussion and rationale, as to why this Diagnostic Code is not applicable in this instance. There is simply no evidence that he had removal of a semilunar cartilage. Even if his condition were to be rated by analogy under this Diagnostic Code, which provides for a maximum 10 percent evaluation for symptomatic removal of a semilunar cartilage, the evidence fails to show that he was symptomatic by objective evidence prior to May 29, 1998. As of May 29, 1998 he is in receipt of the maximum allowable rating under this Diagnostic Code. Finally, the Board notes that Diagnostic Code 5015, for new growths of bone, benign, while potentially applicable in this instance, would not provide for higher ratings than currently assigned for the periods in question, as this criteria is based on limitation of motion of affected parts, as degenerative arthritis. He has already been determined to not warrant higher ratings during the period prior to June 19, 2001 with consideration of the criteria for arthritis and loss of motion. The Board recognizes that there is a similarity of symptoms shown in the evidence of medical treatment and Medical Board examination of the Veteran during service in 1980 and the findings from the November 2002 VA examination. However given the fact that during the lengthy interim of time between 1986 and 1998 when there was no treatment, with only one instance of treatment shown in May 1998, the Board finds that the evidence does not reflect that the findings from the November 2002 VA examination represent chronic symptoms that continued at the same level of severity over the interim period between 1980 and 2002. The Board further finds that there is no need to address the potential applicability of the General Counsel Opinions regarding separate ratings for arthritis and instability, nor separate ratings for flexion and extension at any point during the time between April 21, 1986 and June 19, 2001. Again the arthritis was not shown on X-ray during this time and there were neither manifestations of motion loss nor instability shown during this time period. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable evaluation prior to May 29, 1998 or an evaluation in excess of 10 percent disabling thereafter but prior to June 19, 2001 for osteoarthritis of the left knee, status post excision of osteochondroma. Extraschedular Consideration In exceptional cases where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that 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. Id. The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran'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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra- schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the Board finds that the Veteran's symptomatology and limitation in occupational functioning for the disabilities on appeal are reasonably contemplated by the rating schedule under the first prong of the analysis for the period in which he has been rated noncompensable prior to May 29, 1998 or 10 percent disabling prior to June 19, 2001. The Court has held that, in making this determination, "there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established rating criteria found in the rating schedule for that disability." Thun, 22 Vet. App. at 115. "[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. See also VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996), para. 7 (when service- connected disability affects employment "in ways not contemplated by the rating schedule" § 3.321(b)(1) is applicable." Also, an inadequacy of the rating schedule cannot be established solely by showing an asserted gap between the Veteran's income and the income of similarly qualified workers in his field. Thun, 22 Vet. App. at 116. The Veteran's primary findings related to his service- connected knee disability during that period of time primarily involves pain which is contemplated by the schedular rating criteria. Consequently, the Board finds that his symptomatology and limitation in occupational functioning for the disability on appeal are reasonably contemplated by the rating schedule under the first prong of the analysis. It therefore is unnecessary to reach the further, downstream, questions in the Thun analysis. But even assuming for the sake of argument that the second prong of Thun applies, there still is no probative (competent and credible) evidence that the left knee disability for the period prior to June 19, 2001 has caused marked interference with his employment - meaning above and beyond that contemplated by their respective schedular ratings, or has required any inpatient treatment, much less on a frequent basis. So, in short, there is no indication in the record that the interference with his work caused by his service-connected disabilities, individually, could be considered above and beyond that contemplated by the schedular ratings assigned for these disabilities. See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). In conclusion, since the rating schedule adequately addresses the symptomatology for the disability at issue in this appeal, referral to the Director of Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) is unwarranted. See Thun, supra. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an initial compensable disability evaluation for osteoarthritis of the left knee, status post excision of osteochondroma, prior to May 29, 1998 is denied. Entitlement to a disability evaluation for osteoarthritis of the left knee, status post excision of osteochondroma in excess of 10 percent disabling from May 29, 1998 to June 19, 2001, is denied. REMAND The Board finds that it is necessary to remand the matter of entitlement to service connection for a left tibia disorder for the RO to address procedural issues that prevented an August 2013 grant of service connection for Osgood- Schlatter's disease from fully satisfying this appeal. In granting service connection for this condition, the RO, rather than assigning a separate disability rating for this condition, opted to merge the disability with the already service connected arthritis of the left knee. This action, in which the disability was classified as "Left Knee Osgood- Schlatter Disease With Osteoarthritis" was assigned a 10 percent rating effective from October 27, 2004. Prior to that date, the 10 percent rating was assigned for "Osteoarthritis of the Left Knee, Status Post Excision of Osteochondroma." Essentially this action constitutes a renaming of the disability classified as arthritis, rather than a grant of a separate service connected disability of the tibia. The Board notes that issues involving pyramiding are not a factor in this matter. The examiner who conducted the August 2013 examination, which in part determined that the Osgood-Schlatter's disease was related to service, also gave an opinion stating that the Osgood-Schlatter's disease was a distinctly separate disability from the left knee osteoarthritis, and indicated that it affects different parts of the left knee anatomy (the tibia as opposed to the knee joint) and is affected by different activities from those affected by the arthritis. Thus the RO should readjudicate this matter, to include consideration of assigning the Osgood-Schatter's disease as a separate disability in accordance with VAOPGCPREC 23-97; 62 Fed. Reg. 63,604. Accordingly, the case is REMANDED for the following action: After undertaking any other development action that is deemed warranted, readjudicate the Veteran's service connected left tibia disorder of Osgood- Schlatter's disease as a separate disability from the left knee osteoarthritis. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs