Citation Nr: 1329286 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-10 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for right knee, tear of medial meniscus, status post arthroscopy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from February 1999 to July 1999, with subsequent periods of active duty for training (ADT) as a member of the Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a March 2011 Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board subsequently denied the claim in a September 2011 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and, in February 2013, the Court granted a Joint Motion for Remand (Joint Motion) which vacated and remanded the claim back to the Board for compliance with the instructions provided in the Joint Motion. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Throughout the rating period on appeal, the Veteran's service-connected right knee disability was manifested by flexion to no worse than 120 degrees with pain beginning at 120 degrees and additional limitation to 110 degrees during flare-ups; extension to no worse than zero degrees with additional limitation to 10 degrees during flare-ups; complaints of pain, swelling, giving out, and locking; no ligament laxity; and a diagnosis of minimal arthritis despite negative x-ray findings. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for right knee instability have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for right knee arthritis were met for the entire rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2011). 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, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, service connection was granted for the right knee disability in a February 2006 rating decision. An initial 10 percent disability rating was assigned. In October 2007, the Veteran filed a claim for an increased rating. In the February 2008 rating decision that is the subject of this appeal, the RO granted a higher 20 percent disability rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective from October 11, 2007, the date the Veteran's claim for an increased rating was received. The Veteran contends that his right knee symptoms, which include pain, swelling, giving out, and locking, warrant a disability rating in excess of 20 percent. The Diagnostic Codes relevant to the knee disability are 5003, 5010, and 5257-5261. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under Diagnostic Codes 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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 (Diagnostic Code 5200, etc.). 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, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. 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 the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 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. Flexion elicits such manifestations. 38 C.F.R. § 4.59. The Board will begin by reviewing the evidence most pertinent to the rating period on appeal. The Veteran was afforded a VA examination in December 2007. He reported daily pain, morning stiffness, intermittent swelling, and crepitus. He also stated that his range of motion was diminished, and that repetitive movement caused increased pain. He stated he had locking and near collapse of the knee. He did not use any braces or canes, but did use crutches. He stated that he took Advil intermittently. In terms of activities of daily living, he stated that he had pain with dressing. He was currently not working due to knee pain. He denied flare-ups of pain, and stated that the knee pain was persistent and consistent from day to day. On physical examination in December 2007, there was tenderness medially, and 2+ crepitation on movement. There was no effusion or erythema. The Veteran reported increased pain on repetitive movement, but there was no additional motion loss. He had active and passive range of motion of 0 to 120 degrees. There was no lateral collateral, medial collateral, or cruciate ligament laxity identified. McMurray's test was positive, and there was no atrophy. An x-ray study of the knee was normal. The VA examiner assessed a torn medial meniscus of the right knee, status post arthroscopic debridement, and stated he would not expect flare-ups of the knee, but that the Veteran would have moderate difficulty working as a painter with his knee conditions. In a December 2007 Statement in Support of Claim, the Veteran wrote that his knee pain was constant and that the knees locked all the time. Further, he stated he could not walk normally in that he limped a lot. Further, he stated his knee swelled, and that, in order to get out of his car, he had to lift his knee with his hand. In December 2008, the Veteran reported right knee pain that began a week prior, stating that he had been doing well until then. He reported popping, sharp pain, and giving out, with no swelling. He denied resting pain. Range of motion was from 0 to 130 degrees. There was no laxity to varus or valgus stress, and anterior drawer and Lachman's tests were negative. McMurray's test was also negative, although the Veteran tried to guard when attempting the maneuver. An x-ray study was normal. The VA clinician assessed a probable tear of the medial meniscus. A January 2009 MRI study of the right knee showed a horizontal tear of the mid and posterior horn of the medial meniscus, but was otherwise unremarkable. At a follow-up appointment in January 2009, the Veteran continued to report symptoms of catching, locking, pain, and giving way. On gait observation, he had slight avoidance of the right quadriceps muscle. Range of motion was from 0 to 120 degrees, with pain at the end of the motion. Ligament testing was negative, but McMurray's test was positive. The VA clinician reviewed the MRI study and concluded that the significant tear of the medial meniscus correlated with the Veteran's symptoms. Although a repeat arthroscopy was discussed, the Veteran stated he wanted to try home exercises and hold off on surgery. A July 2009 VA treatment note indicates the Veteran was off work for some time in January 2009, and then returned to work in February 2009 for four months until June. An October 2009 VA treatment note indicates he went back to work in September 2009, and stated that his knee was doing better. The Veteran was afforded another VA examination in October 2009. He stated that, although another tear in the medial meniscus was found on the last MRI study, he had elected to treat it conservatively rather than undergo another surgery. He reported morning pain and stiffness that was constant in nature. He rated the pain at a 2 or 3 out of 10 currently, but stated that, with activity, the pain could increase to a 6 to 8 out of 10. He stated that he remained able to eat, bathe, toilet, groom, dress, and drive. Prolonged standing caused slight pain, but he had more pain with bending over and squatting, such as when painting a baseboard. He reported a walking distance of one mile, and said he was able to do lifting. He said he wore a brace when the knee became painful. He stated he missed 30 to 40 days of work in early 2009 due to knee pain, but had no hospitalizations. He stated that, on a daily basis, the knee sometimes felt unstable, gave way, and caught as though it was locking. On physical examination in October 2009, there were no obvious deformities, but trace effusion on the right. Palpation of the kneecap was tender through the medial border and medial joint line. The lateral joint line was nontender to palpation. Range of motion testing, which was performed three times to ensure accuracy, showed flexion to 125 degrees and extension to 0 degrees. The knee was intact to varus and valgus stress. There was no instability. Anterior drawer and Lachman's test were negative, as was posterior drawer sign. McMurray's and pivot shift tests were also negative. There was no significant atrophy. There was no limp in the Veteran's gait. X-ray studies from 2009 showed no focal degenerative changes, and an MRI study showed a horizontal tear of the mid and posterior horn of the medial meniscus. The VA examiner assessed internal derangement of the right knee and a history of a meniscectomy with a second MRI showing continued medial meniscal tear and minimal arthritis. The examiner further opined that the Veteran would be additionally limited by pain, fatigue, weakness, and lack of endurance following repetitive use or during flare-ups with a loss of motion of anywhere from 0 to 10 degrees, and that, even with quadriceps strengthening and avoidance of court sports, bending, and twisting, he would not be able to perform prolonged kneeling and squatting or running. In November 2010, the Veteran reported that his knees bothered him at times and that he took Ibuprofen occasionally. At the March 2011 Board hearing, the Veteran reported ongoing symptoms of pain, swelling, giving out, and locking. He stated that these symptoms bothered him mostly when he was working as a commercial painter as opposed to during daily activities, as his job required a lot of standing, kneeling, and climbing ladders. He stated that his doctor prescribed a knee brace for him, but that he never wore it. In addition, he stated that he could walk between 5 and 10 minutes. On the question of whether the Veteran is entitled to a higher disability rating for his right knee disability, the Board notes that arthritis and limitation of motion, including motion limited by pain and other orthopedic factors indicated at 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca are to be rated as part of one disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5003. Instability of the knee, which does not include painful limitation of the knee as part of the rating criteria, is a distinct disability. See VAOPGCPREC 23-97 and 9-98. With further regard to the question of whether the Veteran is entitled to an increased disability rating for the right knee disability based on the evidence of record relevant to the rating period on appeal, outlined above, the Board notes that, although the February 2008 rating code sheet reflects that the right knee disability was evaluated under Diagnostic Code 5259 (the code under which the knee disability was initially evaluated when service connection was granted in 2006), the RO used the criteria under Diagnostic Code 5257 to evaluate the knee disability, as reflected in the body of the rating decision. Thus, the right knee disability is rated at 20 percent under Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability. Where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5257 for right knee subluxation or instability. The Veteran has consistently reported giving out of his knee throughout the rating period on appeal. However, no ligamentous laxity has been found on examination at any time during the rating period on appeal, and anterior and posterior drawer signs and Lachman's test have been consistently negative. Thus, in light of the consistently negative findings on ligament testing, the Veteran does not meet the criteria for a higher, 30 percent, disability evaluation under Diagnostic Code 5257, as the giving way he reports cannot be characterized as representing more than moderate instability. Id. The Board has also considered whether any other diagnostic code would allow for an increased rating for the Veteran's right knee disability, manifested by instability. Diagnostic Code 5259 contemplates symptomatic removal of semilunar cartilage (meniscus). A 10 percent rating is the maximum (and only) available rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a. Thus, even though the evidence reflects that the Veteran has undergone such a procedure and remains symptomatic, Diagnostic Code 5259 does not allow for a higher evaluation for the Veteran's right knee disability. Further, Diagnostic Code 5258, which contemplates dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint, provides for a 20 percent disability rating, the maximum and only available rating under this code. Thus, although a recurrent meniscal tear has been identified in the Veteran's right knee, Diagnostic Code 5258 does not allow for a disability rating in excess of 20 percent for the Veteran's right knee disability, as a 20 percent rating is the only rating available. Id. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. 38 C.F.R. § 4.71a. Next, the Board has considered whether any other diagnostic code would allow for a higher disability rating for the Veteran's right knee disability, manifested by limitation of motion, pain, or other orthopedic factors such as weakness or fatigability. Diagnostic Code 5260 contemplates impairment of the knee manifested by limitation of flexion. Where flexion is limited to 60, 45, 30, and 15 degrees, disability ratings of 0, 10, 20, and 30 percent, respectively, are assigned. 38 C.F.R. § 4.71a. In this case, the evidence shows that the Veteran had flexion to no worse than 120 degrees throughout the rating period on appeal. However, as noted above, painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. In January 2009, it was noted that the Veteran's pain began at 120 degrees of flexion. Moreover, the October 2009 VA examiner opined that, during flare-ups, the Veteran's motion might be additionally limited by up to 10 degrees, putting his flexion measurement at 110 degrees. Thus, even taking the Veteran's pain into account, as the criteria for even a noncompensable disability rating under Diagnostic Code 5260 (limitation of flexion to 60 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 20 percent under Diagnostic Code 5260 for the right knee disability for any period. 38 C.F.R. § 4.71a. Diagnostic Code 5261 contemplates impairment of the knee manifested by limitation of extension. Where extension is limited to 5, 10, 15, 20, 30 and 45 degrees, disability ratings of 0, 10, 20, 30, 40, and 50 percent, respectively, are assigned. Id. In this case, the evidence shows that the Veteran had extension to no worse than zero degrees throughout the rating period on appeal. Taking additional limitation during flare-ups into account (which in this case, was estimated to be up to 10 degrees by the October 2009 VA examiner), extension would be limited to 10 degrees. As the criteria for even the currently assigned 20 percent disability rating under Diagnostic Code 5261 (limitation of extension to 15 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support an increased rating in excess of 20 percent under Diagnostic Code 5261 for the right knee disability for any period. 38 C.F.R. § 4.71a. In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis. Diagnostic Code 5055 contemplates prosthetic replacement of the knee joint. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that the evidence weighs against an increased rating under DC 5003 for the right knee disability, including the pain the Veteran has reported. 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 (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint 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. In the absence of limitation of motion, a compensable evaluation is only assigned when there is x-ray evidence of involvement of two or more major or minor joint groups. Here, although x-ray studies have consistently been negative for arthritis throughout the rating period on appeal, the October 2009 VA examiner assessed minimal arthritis. Affording reasonable doubt, then, in assuming for the purpose of this decision that arthritis has been established by x-ray findings, the Board still finds that the weight of the evidence demonstrates that the criteria for an increased rating under Diagnostic Code 5003 have not been met. The flexion measurements of the knee do not meet the minimum criteria for a compensable evaluation under Diagnostic Code 5260. Flexion has been no worse than 120 degrees, with additional estimated limitation to 110 degrees during flare- ups. Further, while extension was estimated to be limited to 10 degrees during flare-ups by the October 2009 VA examiner, as discussed above, the criteria for even the currently assigned 20 percent disability rating have not been met under Diagnostic Code 5261. Moreover, even if limitation was noncompensable, because there is only one major joint involved (the knee), the maximum disability rating available to the Veteran under Diagnostic Code 5003 is 10 percent. 38 C.F.R. § 4.71a. Thus, an increased disability rating is not possible under Diagnostic Code 5003. The Board has also considered whether any separate ratings are available based on the evidence. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98 (when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain). Also, the Board acknowledges VAOPGCPREC 9-2004, where it was held that a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. In this case, as discussed above, the RO evaluated the Veteran's right knee disability under Diagnostic Code 5257, even though no ligamentous laxity has been found on examination at any time during the rating period on appeal. Indeed, based on the Veteran's symptomatology, the most appropriate diagnostic code is Diagnostic Code 5258, which, as noted above, contemplates dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Moreover, as noted above, although x-ray studies have been consistently negative for arthritis, the October 2009 VA examiner inexplicably assessed minimal arthritis. However, in light of the Veteran's complaints of "giving way" of the right knee on a daily basis (indicating the presence of instability despite completely negative clinical findings), as well as the October 2009 VA examiner's diagnosis of arthritis, affording reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent disability rating is warranted under Diagnostic Code 5003 for the entire rating period on appeal. 38 C.F.R. § 4.71a. This is based on the finding of arthritis with painful and somewhat limited motion. It is more advantageous to the Veteran to award the separate rating under Diagnostic Code 5003 for the following reasons. First, the evidence does not establish loss of flexion to even a noncompensable degree (60 degrees), even taking additional limitation due to pain into account. Therefore, a separate rating cannot be assigned under Diagnostic Code 5260. Second, extension has been, for the most part, to 0 degrees. Even taking into account the 2009 VA examiner's statement that during flare- ups, extension is limited to 10 degrees, that would allow for only a 10 percent disability rating under Diagnostic Code 5261. Limitation of extension to more than 10 degrees is not shown, so a separate rating of 20 percent could not be assigned. Regardless, it's either a rating under Diagnostic Code 5003 or 5261 - not both. The February 2013 Joint Motion includes instructions to consider separate ratings under Diagnostic Codes 5003 and either 5260 or 5261 based on limitation of motion. However, the Board finds that the assignment of separate evaluations under these diagnostic codes would constitute pyramiding, and is thus impermissible. 38 C.F.R. § 4.14 (2012). As discussed above, Diagnostic Code 5003 allows for the assignment of a compensable disability rating even where limitation of motion is noncompensable (where specific criteria are met). Thus, it allows for a compensable rating under Diagnostic Code 5003 in lieu of a disability rating under one of the limitation of motion codes; it does not provide for a separate evaluation under the appropriate limitation of motion code. The February 2013 Joint Motion also indicates that a separate disability rating under Diagnostic Code 5258, which contemplates dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, should be considered, presumably in addition to the 20 percent disability rating already assigned under Diagnostic Code 5257. However, the Board finds that both of these diagnostic codes contemplate disability of the knee manifested by instability, and thus, assignment of separate ratings under Diagnostic Codes 5257 and 5258 would violate the rule against pyramiding. 38 C.F.R. § 4.14 (2012). While the Board understands the Veteran's central concern that he has a debilitating right knee disability, it is important for the Veteran to understand that a 20 percent disability evaluation and the separate 10 percent disability rating assigned herein indicate a significant impact on the Veteran's functional ability. Such disability evaluations by VA recognize the Veteran's instability of the knee and painful motion, indicating generally a combined 30 percent reduction in the Veteran's ability to function due to his right knee disability. The critical question in this case, however, is whether the problems the Veteran has cited meet the next highest level under the rating criteria (in excess of 20 percent). For reasons cited above, they do not, at this time. As discussed above, without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. For these reasons, the Board finds that the weight of the evidence is against a finding of an increased disability rating in excess of 20 percent for right knee instability for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, affording reasonable doubt in favor of the Veteran, a separate 10 percent disability rating is assigned for the right knee arthritis. In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's knee disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's knee disability has manifested in arthritis, limitation of motion, including due to pain, and instability. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for such noncompensable limitation of motion due to painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5256, 5260, 5261), including motion limited due to orthopedic factors such as pain, guarding of movement, and fatigability (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), as well as instability (Diagnostic Codes 5257, 5258, 5259). In this case, comparing the Veteran's disability level and symptomatology of the knee to the rating schedule, the degree of disability of the knee throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 U.S.C.A. § 1155. "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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the knee disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (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. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In a timely November 2007 letter, the Veteran was informed of the requirements needed to establish an increased evaluation for his knee disability. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Further, a November 2008 letter contained the specific schedular rating criteria that would be used to evaluate the Veteran's knee disability. The Veteran has been afforded an adequate examination on the issue of an increased rating for the service-connected knee disability. VA provided the Veteran with examinations in December 2007 and October 2009. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include x-ray studies. Conclusions reached and diagnoses given were consistent with the examination reports, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of an increased rating for the service-connected right knee disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the last examination was provided in 2009, the Board concludes a remand for a more current examination is not warranted in this case. There is no medical evidence, or argument from the Veteran, of a material change in symptomatology since he was last examined. See 38 C.F.R. § 3.327(a). The Veteran has not stated the condition is worse. The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted. See VAOPGCPREC 11-95. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post- service VA and private treatment records, VA examination reports, and the Veteran's statements, including his testimony at the March 2011 Board hearing. In that regard, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. 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. Here, during the March 2011 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claim, including regarding specific evidence that may help substantiate his claim. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. Significantly, the Veteran has not identified, and the record does not otherwise indicate, 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 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). ORDER An increased disability rating in excess of 20 percent for right knee instability is denied. A separate 10 percent disability rating for right knee arthritis is granted for the entire rating period on appeal, subject to the rules governing payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs