Citation Nr: 1329896 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 06-29 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating greater than 20 percent for right anterior cruciate ligament (ACL) repair with residual instability, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active military service from February 1988 to March 1996. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2009 and January 2011, the Board remanded the claim for additional development. As explained in the January 2011 Board remand, the presently appealed increased rating claim for the right knee stemmed from an August 2004 rating decision that granted an initial 10 percent rating for right knee arthritis, but reduced, from 20 percent to 10 percent, the Veteran's previously existing right knee instability rating. The January 2011 Board remand, therefore, included the issues of the propriety of a rating reduction from 20 percent to 10 percent for right knee instability, as well as entitlement to an increased rating greater than 10 percent for right knee instability. In a March 2012 supplemental statement of the case (SSOC) and a March 2012 rating decision, the Appeals Management Center (AMC) restored the Veteran's 20 percent rating for right knee instability, effective for the entire appellate time period. As this decision represented a complete grant of benefits with respect to the issue of the propriety of a rating reduction from 20 percent to 10 percent for right knee instability the appeal is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). That said, as the restoration of the 20 percent rating for right knee instability did not represent the maximum benefits available under VA regulations and the March 2012 SSOC denied entitlement to an increased rating greater than 20 percent for right knee instability, the Veteran's increased rating claim for instability of the right knee remains on appeal. In light of the foregoing, the Veteran's increased rating claim has been restyled as listed above. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT The Veteran's right knee disabilities are manifested by pain, stiffness, and mild instability, but not by objective evidence of severe recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for a disability rating greater than 20 percent for right ACL repair with residual instability, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters in February 2004 and May 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The May 2007 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted medical evidence and argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a higher rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Non-VA medical records have been provided by the Veteran. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran an appropriate VA examination in July 2004. Pursuant to the Board's October 2009 remand, he was afforded another VA examination in June 2010. The VA examination reports are thorough and supported by outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examinations also discussed the impact of the disability on the Veteran's daily living. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of VA treatment records, a December 2009 notice letter from VA to the Veteran, the June 2010 VA examination report, and the March 2012 separate adjudication of the reduction and increased rating claims, the Board finds that there has been substantial compliance with its October 2009 and January 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's right knee ACL repair with residual instability currently is rated as 20 percent disabling under DC 5257 for moderate lateral instability. See 38 C.F.R. § 4.71a, DC 5257 (2012). The Veteran claims his current rating does not accurately reflect the true nature and degree of his disability. DC 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). The Board observes that the words "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). In this case, after filing his claim for increased rating the Veteran was afforded a VA examination in July 2004. The examiner discussed the Veteran's right knee history. At that time, the Veteran was employed full time in an office position. He stated that he tried to stay in good health by exercising regularly. He noted that he enjoyed cross training, but had some difficulty with it due to right knee problems. He reported some right knee instability, for which he had a brace. He reported that he generally refused to wear the brace during working hours due to abrasion to his clothing. He stated that during flare-ups of right knee problems caused by pain and discomfort, he would wear the knee brace. He noted that he experienced daily discomfort of 3 to 4 out of 10, with pain rated at 6 out of 10 during at least bi-weekly flare-ups. He indicated that he treated his knee problems with over-the-counter anti-inflammatories, elevating the knee, and the use of ice and heat therapy. He related that he had difficulty with stooping movements and any kind of pivotal changes, which caused a loss of balance due to the right knee. He stated that generally, any such problems would resolve when he stopped the specific activity giving him difficulty. He denied locking or actual giving way of the right knee. He also denied any falls and was independent in all activities of daily living. On physical examination, there was no evidence of swelling, but there was crepitus. The Veteran had full range of motion of the right knee. McMurray's sign was positive and there was gross instability of the right knee. The Veteran had tenderness of the right popliteal fossa area, which was suggestive of patellofemoral syndrome. The right lower extremity musculature was very well developed with no evidence of atrophy or abnormal movement. Muscle tone and strength was excellent. The Veteran had a slightly antalgic gait, due to compensating for right knee pain. That said, he had a good tandem gait and was able to do heel and toe walking. There was no loss of sensation or reflexes and his arthroscopic surgical scars were well healed, nontender, and nonadherent. X-rays showed mild degenerative joint disease of the right knee. The diagnosis was history of torsion injury with subsequent repair of the ACL in both the medial and lateral meniscus; right knee degenerative joint disease with knee instability on examination; probable patellofemoral syndrome directly related to the Veteran's injury and subsequent degenerative changes. An August 2004 VA treatment record included a report of pain, shifting, and instability of the right knee. A February 2009 private MRI showed degenerative changes and post-operative status of the Veteran's right knee. In October 2009, the Veteran sought treatment for a two week history of right knee pain under the patella. There was subjective weakness and pain that was 4 out of 10. The Veteran denied any injury, swelling, locking, or instability. On examination, there was no swelling. The Veteran had full extension, but flexion of the right knee was limited to 130 degrees. Lateral McMurray's testing was positive and there was tenderness to palpation along the lateral joint line. In November 2009, the Veteran again denied problems with instability. On examination, McMurray's testing was negative, quadriceps muscle strength was 5/5, range of motion was 0 to 120 degrees, the right knee scar was well healed, and there was medial and lateral joint line pain. In another November 2009 treatment record, the treatment provider suspected that the Veteran's right knee pain was from a combination of his meniscal tear and osteoarthritis. The Veteran was afforded another VA examination in June 2010. The examiner noted review of the claims file and medical records. The examiner specifically discussed the medical evidence of record. Current symptoms included pain at night, discomfort with walking, occasional feelings that the knee "will go", and he no longer participated in sports. The Veteran reported subjective pain, instability, and stiffness, while denying deformity, giving way, weakness, incoordination, decreased speed of joint motion, dislocation, subluxation, locking, effusion, or flare-ups. He noted that he was able to stand for between 15 and 30 minutes and was able to walk more than a quarter mile, but less than a mile. He denied the use of assistive devices. On physical examination, the Veteran had an antalgic gait, but no evidence of abnormal weight bearing. There was tenderness and guarding of movement, as well as crepitus. There was mild anterior/posterior instability and the anterior/posterior ligament was unstable at 30 and 90 degrees, but normal in a neutral position. There were no clicks, snaps, grinding, locking, effusion, or dislocation. The meniscus was present and there was no evidence of a tear. McMurray's test was negative. The Veteran had right knee motion from 0 to 115 degrees, with no evidence of painful motion. There was no evidence of additional pain or other limitations on repetitive motion. X-rays showed moderate degenerative arthritis of the right knee. The Veteran currently worked full time in human resources and had missed 3 weeks of employment in the previous year due to medical appointments in Kuwait. The Veteran's diagnoses were right ACL tear and repair; right meniscus tear and debridement; and moderate degenerative joint disease. The right knee caused significant problems with work, specifically due to decreased mobility, problems with lifting and carrying, and pain. The response at work due to such circumstances was that the Veteran was assigned different duties. The Veteran's right knee problems would result in a moderate to severe impact on his ability to perform physical employment due to pain and limited mobility, but would cause no impact on his ability to perform sedentary employment. The right knee problems resulted in severe effects on the ability to do chores and participate in sports; had a moderate effect on the ability to exercise; had a mild effect on shopping, recreation, traveling, and bathing; and no effect on feeding, dressing, toileting, grooming, and driving. Having carefully reviewed the record, the Board finds no objective evidence that would warrant a rating greater than 20 percent for the Veteran's right knee ACL tear with residual instability. In this regard, the Board notes that VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). To warrant a higher evaluation under DC 5257, the Veteran's symptomatology would have to approximate severe recurrent subluxation or lateral instability. The results of both VA physical examinations indicated evidence of gross instability of the right knee, which the June 2010 VA examiner specifically described as mild in nature. The Board also finds it significant that during treatment in October and November 2009 the Veteran explicitly denied any problems related to instability. Moreover, while the Veteran has or had a brace for the right knee he appears to use the brace infrequently or not at all. During the July 2004 VA examination he reported using the brace only when experiencing his approximately bi-weekly flare-ups of right knee pain. By contrast, during the June 2010 VA examination he denied any use of assistive devices for the right knee. Most significantly, the Veteran has denied any history of giving way, subluxation, or falls associated with the right knee. The Veteran's reports of occasional feelings that the knee "will go" are precisely the type of symptoms contemplated in the current 20 percent rating under DC 5257 and certainly is not consistent with severe instability or subluxation, such as to warrant a higher rating under DC 5257. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. The General Counsel stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. Additionally, in VAOPGCPREC 9-98, the VA General Counsel held that if a veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In this case, however, the Veteran already has a separate 10 percent disability rating for right knee arthritis under DC 5010, which is rated and evaluated under the provisions of DC 5003. An increased rating for right knee arthritis was denied by the Board in January 2011. The Veteran has not disputed the Board's January 2011 findings and, moreover, since that time there is no lay or medical evidence to indicate that a rating greater than 10 percent for right knee arthritis would be warranted. Also, in a GC Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under DCs 5260 and 5261 to adequately compensate for functional loss associated with injury to the leg. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. In this case, however, during the entire appellate time period the Veteran has full extension and flexion to at least 115 degrees, neither of which meets the criteria for a compensable evaluation. As such, separate ratings under DCs 5260 and 5261 are not warranted. In addition, no higher or alternative rating under a different DC can be applied. The Board notes that there are other DCs relating to knee disorders, such as DC 5256 (ankylosis of the knee), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage, symptomatic), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). The Veteran's right knee disabilities are not manifested by nonunion or malunion of the tibia and fibula, or genu recurvatum. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his right knee, albeit with some limitation of motion, so it is clearly not ankylosed. Prior to the appellate time period the Veteran underwent surgery to removed meniscal cartilage, but there is no evidence during the appellate time period of dislocated semilunar cartilage. As such, a higher or separate rating under DC 5258 is not warranted. To the extent that the Veteran's pain, weakness, stiffness, and other symptoms are related to the removal of any meniscal (semilunar) cartilage those same symptoms are fully contemplated and compensated in the 10 percent rating under DC 5010. As a rating higher than 10 percent is not available under DC 5259 and a separate rating would constitute impermissible pyramiding (as the symptoms already are contemplated by the 10 percent rating for right knee arthritis and or instability), further consideration of DC 5259 is not warranted. The Board also concludes that a higher rating would not be warranted under DC 5010. As noted, no lay or medical evidence has been associated with the claims file since the January 2011 Board decision and there is no basis to conclude that a higher rating is warranted for the Veteran's right knee arthritis and associated pain, stiffness, weakness, and limitation of motion. Finally, a separate rating for the Veteran's right knee scars would not be applicable in this case. The Board notes that during the pendency of this appeal, the regulations governing scar disabilities were amended. Since the amended regulations apply only to claims received by VA on or after October 23, 2008, that version of the scar regulations will not be applied here. 73 Fed. Reg. 54708 (September 23, 2008). The Veteran has scars on the right knee that are well healed, nonadherent, and nontender and they have not been noted to be deep or otherwise problematic. As such, a separate compensable rating for the Veteran's right knee scars is not warranted. See 38 C.F.R. § 4.118, DC 7800-7805 (2008). The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain and intermittent instability in the right knee. 38 C.F.R. §§ 4.40, 4.45. However, the limitation of motion documented in the medical records as resulting from pain is not separately compensable and already contemplated in the disability rating currently assigned under DC 5010. Moreover, there is no objective evidence of decreased motion on repetition due to fatigue, weakness, incoordination, or lack of endurance. While the Veteran's right knee problems do result in some effects to daily activities, he remains fully independent in activities of daily living and his problems are the type of problems fully contemplated by his current right knee ratings. There is otherwise no evidence of significant impairment of motor skills, muscle function, or strength attributable to the Veteran's right knee disabilities. While the Board sympathizes with the Veteran's difficulties, the Board notes that some degree of impairment on his ability to perform daily activities is contemplated in the current ratings assigned for the right knee. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 20 percent for the Veteran's right knee ACL repair with residual instability. Furthermore, the Board concludes that based on the foregoing evidence assignment of further staged ratings is not for application. Hart, 21 Vet. App. at 505. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's 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 Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right knee ACL repair with residual instability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right knee ACL repair with residual instability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports pain, weakness, stiffness, limitation of motion, and instability. This is precisely the symptoms evaluated under DCs 5010 and 5257, as discussed above. Thus, the Veteran's current schedular ratings under DCs 5010 and 5257 are adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an increased rating greater than 20 percent for right ACL repair with residual instability, right knee, is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs