Citation Nr: 1328937 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 05-02 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a higher or separate initial disability evaluation for service-connected post-traumatic degenerative joint disease of the right knee, status post-arthrotomy (right knee disorder) because of symptomatic removal of semilunar cartilage under 38 C.F.R. § 4.71a, Diagnostic Code 5259, at any time since July 3, 2003. 2. Entitlement to a separate or a disability evaluation higher than 20 percent for the service-connected right knee disorder because of lost extension under 38 C.F.R. § 4.71a, Diagnostic Code 5261, at any time since December 23, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO granted service connection for a right knee disorder. The Veteran contested the initial 10 percent disability evaluation assigned, effective as of July 3, 2003. Subsequently, in a June 2006 rating decision, the RO assigned an increased 20 percent disability evaluation for the service-connected right knee disorder, effective as of December 23, 2005. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this matter continued before the Board. In January 2007, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In April 2007, the Board remanded this case for additional evidentiary development. In an August 2009 decision, the Board denied the claims for higher initial evaluations for the right knee disorder, evaluated as 10 percent disabling from July 3, 2003, to December 22, 2005, and 20 percent disabling from December 23, 2005. The Veteran appealed the Board's decision to the Court, and in an October 2011 Memorandum Decision, the Court affirmed in part and vacated in part the Board's August 2009 decision and remanded the vacated portions to the Board for further proceedings consistent with this decision. Specifically, the Court Memorandum Decision affirmed the Board's August 2009 decision to not grant the Veteran higher and/or separate evaluations under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5257, for the July 3, 2003, to December 23, 2005, appeal period. The Court's Memorandum Decision thereafter only vacated the Board's decision to the extent that it failed to discuss the applicability of Diagnostic Code 5259 for the entire appeal period and to the extent that it failed to properly discuss certain evidence as it relates to a higher evaluation under Diagnostic Code 5261, but only for the post-December 23, 2005, appeal period. The Board subsequently remanded the Veteran's claims in July 2012 for further evidentiary development. As noted in the July 2012 remand, the Board has recharacterized the remaining issues on appeal as listed above so as to limit the issues on appeal to only the elements vacated and remanded by the Court. FINDINGS OF FACT 1. From July 3, 2003, the most probative evidence of record shows that the Veteran has not suffered from separate or additional symptomatology due to his prior meniscectomy/meniscal injury that has not already been contemplated under one of the assigned diagnostic codes for his service connected right knee disorder. 2. From December 23, 2005, the most probative evidence of record shows that the Veteran has not suffered from separate or additional symptomatology due to lost knee extension that has not already been contemplated under one of the assigned diagnostic codes for his service connected right knee disorder and that his right knee disorder is not manifested by extension limited to at least 20 degrees even taking into account his complaints of pain. CONCLUSIONS OF LAW 1. From July 3, 2003, the criteria for establishing entitlement to a separate or higher disability evaluation due to a meniscectomy under Diagnostic Code 5259 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2013). 2. From December 23, 2005, the criteria for establishing entitlement to a separate or a rating in excess of 20 percent for a right knee disorder because of lost extension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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) (2013). 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 Veteran's claims arise from his disagreement with the initial evaluation 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). Nonetheless, the record reflects that the Veteran was notified in March 2006 and April 2007 as to how VA determines the appropriate disability rating and effective date. The record contains no evidence of prejudice to the Veteran as a result of any failure to notify on the part of VA. Moreover, the Board finds that even if VA had an obligation to provide notice under 38 U.S.C.A. § 5103(a) and failed to do so, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to VA's duty to assist, VA has associated with the claims folder the Veteran's private medical records, and in September 2003, May 2006, December 2006, March 2009 and August 2012, he was afforded formal VA examinations. VA treatment records through July 2012 have also been associated with the Veteran's Virtual VA paperless claims file. Copies of the Veteran's Social Security Administration (SSA) records have also been added to his paper claims file. 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 yet been obtained. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). The Board reiterates that the Veteran provided testimony before the undersigned in January 2007. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the January 2007 hearing, the undersigned identified the issues on appeal and information was solicited regarding the nature of his argument with respect to these claims. Moreover, additional evidence that could assist the Veteran's claim, including SSA records were discussed and subsequently associated with the claims file. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Additionally, the Board finds there has been substantial compliance with its July 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) incorporated VA treatment records from September 2003 to July 2012 into the Veteran's electronic file, and that the Veteran was scheduled for a medical examination in August 2012. The examination report reflects that all necessary tests and studies were performed, including range of motion testing, and that the Veteran's functional impairment due to symptoms such as pain was discussed by the examiner. As such, the Board finds that this examination is fully adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The AMC later issued a Supplemental Statement of the Case (SSOC) regarding the Veteran's claims. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). 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 (2013). 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 (2013). 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, the Court noted that where 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. 12 Vet. App. 119, 126 (1999). Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations or other pathology, or it may be due to pain, supported by adequate pathology and evidence by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, the absence of normal callosity or the like. Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the knee is considered a major joint. Furthermore, 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Relevant Facts For historical purposes, the Veteran was originally granted service connection for a right knee disability in a November 2003 rating decision. A 10 percent disability evaluation was assigned under Diagnostic Code 5010, effective as of July 3, 2003. A timely notice of disagreement was received from the Veteran's representative in December 2003. In a June 2006 rating decision, the Veteran's disability evaluation was increased to 20 percent under Diagnostic Codes 5010-5257, effective as of December 23, 2005. The Veteran has continued to express disagreement with the assigned ratings. In a December 2012 rating decision, a separate 0 percent disability evaluation was assigned for limitation of flexion of the right knee under Diagnostic Code 5260, effective as of July 3, 2003. A 10 percent disability evaluation was assigned, effective as of May 4, 2006. Upon receipt of the Veteran's claim, he was afforded a VA joint examination in September 2003. The Veteran was noted to be suffering from the residuals of a meniscectomy of the right knee. The Veteran reported that it felt like there was a grinding sensation under his knee cap. He also complained of soreness that was aggravated when he used a treadmill. He denied symptoms of buckling, locking, giving way or instability. Examination revealed no ambulatory devices or braces. The Veteran had extension of the right knee to 0 degrees. There was no effusion, edema or swelling. Manual tests, including McMurray's testing, were negative. The Veteran was diagnosed with degenerative joint disease of the right knee with residuals of a medial meniscectomy. The record also contains a medical report dated March 2004 from a private physician with the initials P.F.H. According to Dr. H, the Veteran had bilateral knee complaints. Examination revealed a "good range of motion" for extension and flexion to 110 degrees. Crepitance was also noted. X-rays revealed advanced degenerative joint disease with "huge spurs and osteophytes." The Veteran was diagnosed with advanced degenerative joint disease at this time. The record also contains a statement from Dr. H dated December 23, 2005. According to Dr. H, the Veteran had been a patient of his for the past 7 years. It was noted that the Veteran was suffering from severe tricompartmental degenerative joint disease of the knees with instability. The Veteran was unable to walk long distances or sit for prolonged periods of time. Dr. H indicated that further treatment could not be provided to the Veteran for cardiovascular reasons and that he considered the Veteran to be 100 percent disabled. The Veteran was afforded a VA examination in May 2006. The Veteran reported that his knee was getting more painful and unstable. He described constant pain that was worsened by kneeling, standing over five minutes, sitting over ten minutes, walking over 5 minutes, driving, using stairs and lying on his side. The Veteran indicated that he was unable to squat as well. The Veteran also endorsed flare-ups, with a "grinding and burning" pain, weakness, a sensation of excess fatigability and incoordination. He reported that these flare-ups occurred on a daily basis for the past 7 years lasting anywhere from 2 hours to 24 hours. Examination revealed an antalgic gait. The Veteran was also noted to be wearing a knee brace. The Veteran had effusion of the right knee with no redness or heat sensation. The knee was tender to palpation. Range of motion testing revealed extension to 5 degrees with complaints of pain and moaning. Lachmans and drawer testing were both negative. Testing was positive, however, for grinding and crepitus. The examiner noted that there was no objective clinical evidence that function was additionally limited by pain, fatigue, weakness or incoordination except as already described in the examination report. Pain appeared to have the greatest functional impact. According to a May 2006 treatment record from Dr. H, the Veteran had pain, popping and crepitance in his knees. He lagged 5 degrees of extension in the right knee. Dr. H related this symptomatology to diagnoses of bilateral knee degenerative joint disease, bilateral osteoarthritis and bilateral patellofemoral syndrome. The Veteran was again treated by Dr. H in July 2006. Dr. H noted that the Veteran had significant debilitating pain in both knees with gross patellofemoral femorotibial crepitance in the right knee. He lacked right knee extension by 5 degrees. X-rays were reviewed, confirming a diagnosis of tricompartmental arthritis. Also, as noted in the Board's prior decision, Dr. H did indicate that the Veteran lagged 20 degrees of extension upon treatment in November 2006. However, further review of this record reflects that it pertains to the left knee. The Veteran was afforded another VA examination of the knee in December 2006. The Veteran reported problems with both of his knees and noted that it was difficult for him to get up from a chair or use stairs. He also indicated that he was unable to walk more than 1/8th of a mile before having to sit down and rest. Examination revealed extension to 10 degrees. The Veteran did report an increase in pain and incoordination after repetitive testing, but he denied weakness, fatigability or lack of endurance. The knee was stable to varus and valgus stress. X-rays revealed evidence of tricompartmental degenerative changes with the most significant changes noted in the medial compartments bilaterally. There was no evidence of fracture or dislocation. The Veteran was diagnosed with right knee severe tricompartmental degenerative joint disease. The examiner noted that he was unable to state whether this disability impacted the Veteran's ability to work since he was already retired and disabled due to a heart condition. The Veteran was again seen by Dr. H in November 2007. The Veteran was noted to be lagging 10 degrees of extension at this time. X-rays revealed severe tricompartmental degenerative joint disease with medial compartment, mostly affected by significant medial femoral condyle and tibial plateau sclerosing and destruction. A December 2008 record from Dr. H indicates that the Veteran needed to have knee replacements. The knees were popping with crepitation on motion. McMurray's, Lachmans and posterior drawer testing were negative. The Veteran was noted to be lacking 5 degrees of extension at this time. There was also mild varus deformity. The Veteran was diagnosed with bilateral knee degenerative joint disease and osteoarthritis, end-stage. The Veteran was seen for VA outpatient treatment in January 2008. It was noted that the Veteran was suffering from sharp, aching pain in the knee. This interfered with the Veteran's activities of daily living, enjoyment of life, relations with others, walking and mood. The Veteran was afforded an additional VA examination of the knee in March 2009. The Veteran described diffuse pain throughout the right knee. He also endorsed severe weakness and that the muscles around the knee would give way. He also described severe stiffness, intermittent swelling and popping and catching. He denied erythema or episodes of locking. He also described fatigability and a lack of endurance in the right knee. The Veteran had failed all conservative treatment, and due to a cardiovascular condition, he was not a candidate for any operation. He denied any periods of flare-up in the right knee and he intermittently wore a brace. The Veteran again reported that he was not working. However, he now related this to both his cardiovascular condition and his knee disability. Examination revealed right knee extension to 0 degrees. There was no change in the degree of motion after five repetitions and the examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance after repetition. There was no soft tissue swelling and the knee was stable to varus and valgus stress. Lachman, McMurray and anterior/posterior drawer testing were all negative. There was diffuse tenderness to palpation and a positive patellar grind test. The Veteran was diagnosed with right knee osteoarthritis/degenerative joint disease. X-rays revealed the Veteran to be suffering from advanced tricompartmental degenerative arthritis. An ossified body in the suprapatellar bursa was noted. It was determined that there was no significant change when compared to the previous examination of December 2006. X-rays of the knees were again taken in February 2011. These revealed advanced bilateral tricompartmental osteoarthritic changes that were manifested by joint space narrowing, tibial spine hypertrophy, subchondral cyst formation, chondrocalcinosis and osteophytosis. There was relative sparing of the bilateral lateral femorotibial compartments resulting in a mild varus deformity. There was also a well-corticated osseous body in the right joint capsure, suggesting synovial osteochondromatosis. A small right joint effusion was also noted. A March 2011 record notes a history of bilateral knee pain for decades and that the Veteran reported limited activity due to his knee pain. In July 2011, the Veteran was treated with injections of both knees. At this time, the Veteran denied acute bilateral knee swelling, warmth, discoloration or pain. According to a June 2012 VA outpatient treatment record, the Veteran's knees were treated via injections the previous years. It was noted that he had done well for the last 10 months but that his symptoms had since returned "insidiously." X-rays were reviewed, revealing moderate arthrosis with bone on bone medial compartments. The Veteran was most recently afforded a VA examination for his knee in August 2012. The Veteran was noted to be suffering from degenerative joint disease of the right knee. The Veteran indicated that since his last examination of March 2009, he now noticed locking approximately once per day with almost constant swelling. He also referred to constant pain and stated that his knee gave way almost daily. He also had continued fatigability, lack of endurance and incoordination. He could walk approximately 50 yards with the use of a cane and he could slowly use stairs if he led with his left knee. The Veteran also used a brace on his knee except for when he was asleep or sitting in his home. Range of motion testing revealed right knee extension to 5 degrees. The Veteran was capable of repetitive motion with no change in extension. He was noted to have functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, instability of station, disturbance of locomotion and interference with sitting, standing and weight-bearing. The examiner specifically noted that these limitations were not necessarily objective findings and included the Veteran's subjective complaints. Tenderness to palpation was noted. There was a history of a meniscal tear with a subsequent meniscectomy in 1970. The examiner concluded that the Veteran's right knee disability impacted his ability to work in that his ambulation was very limited. As such, he would only be capable of very sedentary work. The examiner indicated that an opinion regarding a change in range of motion due to functional loss could not be provided without speculation. A Higher Evaluation Under Diagnostic Code 5259 - Since July 3, 2003 The Board finds that, as will be explained in more detail below, that the most probative evidence of record demonstrates that the Veteran is not entitled to a separate or higher disability evaluation for his right knee disorder under Diagnostic Code 5259 at any time since July 3, 2003. Under this code, a 10 percent disability evaluation is warranted for the symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. A higher disability evaluation is not available under this code. The Board recognizes that the Veteran indeed has a history of a right meniscectomy. However, there is no other symptomatology associated with the removal of the semilunar cartilage that has not already been compensated for by the assigned ratings in this case under Diagnostic Codes 5010, 5257, 5260 and 5261. In this regard, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). While the September 2003 VA examiner did note residuals of a meniscectomy, a March 2004 X-ray only revealed evidence of degenerative joint disease with spurs and osteophytes. The May 2006 VA examiner noted the Veteran's symptoms of pain, instability, grinding, burning, and crepitus. However, the only diagnosis assigned as a result of this symptomatology was osteoarthritis, baker cyst, and laxity of the medial joint line. His private physician, Dr. H, has also related his symptomatology to degenerative joint disease and tricompartmental arthritis. The August 2012 VA examiner also concluded that the Veteran's residual symptom due to his meniscectomy is his now service-connected tricompartmental arthritis. All of the symptomatology associated with this condition has been addressed through Diagnostic Codes 5010 (arthritis with painful motion), 5257 (instability), 5260 (limitation of flexion) and 5261 (limitation of extension with functional loss). Therefore, the Board finds that the most probative evidence of record demonstrates that the Veteran is not suffering from any additional symptomatology related to his meniscectomy that has not already been considered by one of the already assigned diagnostic codes. Accordingly, the Board finds that to also grant a separate 10 percent rating under this code would amount to impermissible pyramiding. See 38 C.F.R. § 4.14 (2012). The Board recognizes that the Veteran believes he is entitled to a separate disability evaluation under Diagnostic Code 5259. However, the mere fact that the Veteran has a history of removed semilunar cartilage is not in and of itself sufficient to warrant a separate compensable disability evaluation under Diagnostic Code 5259. Rather, there must be evidence that semilunar cartilage has been removed and remains symptomatic. See 38 C.F.R. § 4.71a. As previously discussed, the Veteran's current symptoms have been related to and compensated as part of his service connected degenerative joint disease under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5257. There is no objective evidence of additional symptomatology associated with the Veteran's prior meniscectomy that has not already been considered by the assigned rating codes. Since the most probative evidence of record is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a separate or higher disability evaluation under Diagnostic Code 5259 at any time during the pendency of this claim must be denied. A Higher Evaluation under Diagnostic Code 5261 - Since December 23, 2005 The Veteran contends that he is entitled to a separate rating or a disability evaluation in excess of 20 percent for his right knee disorder under Diagnostic Code 5261, as of December 23, 2005. However, as outlined below, the Board finds that the most probative evidence of record demonstrates that neither a separate compensable rating nor a disability evaluation in excess of 20 percent, based on Diagnostic Code 5261, is warranted for his right knee disorder at any time since December 23, 2005. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2013) provides that traumatic arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Diagnostic Code 5003 provides that degenerative arthritis 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, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013), impairment of the knee including recurrent subluxation or lateral instability will be rated at 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when sever. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; 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 of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. A December 2005 private treatment note reflects a diagnosis of severe tricompartmental degenerative joint disease. Range of motion testing was not performed at this time, however. A May 2006 VA examination report reflects extension to 5 degrees with complaints of pain and moaning. According to the December 29, 2006, VA examination report, the right knee was only capable of extension to 10 degrees. The Veteran was again noted to be lacking extension of 10 degrees upon private treatment in November 2007. However, upon examination in March 2009, while there was evidence of pain, the Veteran was capable of full extension to 0 degrees. The examiner also noted that there was no objective evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance after repetition. Finally, the Veteran's most recent VA examination of August 2012 found evidence of extension to 5 degrees. While there was evidence of functional loss due to less movement than normal from pain and other symptoms, the examiner noted that these limitations were not necessarily objective findings and included the Veteran's subjective complaints. An opinion regarding a change in range of motion due to functional loss could not be provided without speculation. As to a separate compensable rating under Diagnostic Code 5261, as noted above the 20 percent rating already assigned the Veteran's right knee disorder is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257. Moreover, the Board finds that the most probative evidence of record demonstrates that the Veteran's adverse symptomatology as seen at the above VA examinations, which for the most part is limited to pain, limitation of motion, and instability, is already considered by the assigned diagnostic code. Accordingly, the Board finds that to also grant a separate 10 percent rating under Diagnostic Code 5261 would amount to impermissible pyramiding. See 38 C.F.R. § 4.14. As to a higher evaluation under Diagnostic Code 5261, a review of the evidence of record since December 23, 2005, reveals that the Veteran has been limited to, at most, 10 degrees of extension in the right knee. Limitation of extension to 10 degrees is rated as 10 percent disabling. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's right knee is already rated as 20 percent disabling which, as explained above, compensates him for this lost extension and the next-higher evaluation of 30 percent under Diagnostic Code 5261 requires evidence of extension limited to at least 20 degrees. At no time since December 23, 2005, has the Veteran's right knee been limited to such a degree. As such, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 20 percent under Diagnostic Code 5261, since December 23, 2005, is not warranted. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As already noted, when dealing with joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). The Board recognizes that the Veteran has been found to have additional functional loss in the right knee due to symptoms such as pain or fatigability. However, the evidence of record does not reflect functional loss so severe as to warrant a disability evaluation in excess of 20 percent at any time since December 23, 2005. While the Veteran did report increased pain and incoordination after repetitive testing in December 2006, it was noted that he denied weakness, fatigability, or lack of endurance. The March 2009 VA examiner also concluded that there was no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, or other symptoms upon repetition. Finally, while the August 2012 VA examiner did note functional loss due to less movement than normal, this does not suggest that the Veteran's right knee has been so functionally impaired as to be limited to 20 degrees of extension. While there is certainly evidence of pain on motion, the Court has explained that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In the present case, there is simply no evidence of additional functional loss due to pain of sufficient severity to warrant a disability evaluation in excess of 20 percent under Diagnostic Code 5261 at any time since December 23, 2005. Since the most probative evidence of record is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a separate or a disability evaluation in excess of 20 percent under Diagnostic Code 5261 since December 23, 2005, must be denied. Conclusion In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record. In this regard, the Veteran is credible to report on what he sees and feels such as pain and lost motion and the claimant and others are credible to report on what they can see. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions as to the severity of the disability provided by the experts at the VA examinations than these lay assertions. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). ORDER A separate or higher initial disability evaluation for a right knee disorder due to a meniscectomy under Diagnostic Code 5259 is denied at all times from July 3, 2003. A separate or a rating in excess of 20 percent for a right knee disorder because of lost extension under Diagnostic Code 5261 is denied at all times from December 23, 2005. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs