Citation Nr: 1329940 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-13 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating greater than 10 percent for a left knee disability, dating from June 13, 2001, to January 27, 2005. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1966 to September 1969. This matter is before the Board of Veterans' Appeals (the Board) on appeal of December 2001 and August 2005 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and by the Appeals Management Center (AMC) respectively. Original jurisdiction in this case currently resides with the RO in Roanoke, Virginia. Procedural History On June 13, 2001, the RO received the Veteran's service-connection claim for a left knee disability. The RO granted this claim in the above-referenced December 2001 rating decision, and assigned an initial 10 percent disability rating, effective the date of claim. The Veteran disagreed with this initial rating and perfected an appeal as to that issue. In October 2003, the Veteran testified at a personal hearing at the Board's offices in Washington D.C. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a March 2004 decision, the Board remanded the Veteran's initial rating claim for additional evidentiary development. In particular, the Board determined that since the medical evidence of record at the time inadequately discussed the extent of the Veteran's functional loss due to pain, if any, a remand was necessary to obtain a new VA examination. This examination took place on January 27, 2005, and the corresponding examination report is of record. After reviewing the results of the January 2005 examination report, the AMC awarded the Veteran an increased disability rating for his left knee disability from 10 to 30 percent, effective the date of the examination, January 27, 2005. In a September 2005 statement, the Veteran expressed satisfaction with this 30 percent rating, but challenged its effective date, essentially arguing that the rating should have been made effective the original date VA received his service-connection claim on June 13, 2001. See the Veteran's September 2005 Statement in Support of Claim. The RO, and in turn the Board, interpreted the Veteran's September 2005 statements as a full withdrawal of his perfected initial rating claim, and an initiation of a new claim for an earlier effective date for the increased 30 percent rating. The Veteran perfected an appeal as to this effective date issue, and the Veteran testified at a second hearing in Washington DC before a different Veterans Law Judge (VLJ) in October 2010. The Board denied the Veteran's effective date claim in a February 2011 decision. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (the Court). In a March 2012 Memorandum Decision, the Court set aside the Board's February 2011 denial, and remanded the Veteran's claim. In particular, the Court specifically found that the Board failed to liberally construe a statement made by the Veteran during the pendency of his appeal as a request for the assignment of any disability rating greater than 10 percent for his knee prior to January 27, 2005. The Court found that the Board too narrowly construed the Veteran's claim as a request for the earlier assignment of a 30 percent rating alone. In so doing, the Court has essentially recharacterized the issue on appeal from a request for the assignment of an effective date earlier than January 27, 2005 for the award of an increased rating to 30 percent, to a request for an initial rating greater than 10 percent [to include 20 percent, 30 percent or the award of a separate compensable rating under another diagnostic code], at any time between June 13, 2001, and January 27, 2005. The Court remanded this newly-characterized issue to the Board for additional appellate review. In December 2012, the Board sent the Veteran a letter notifying him of the status of his claim, and of the reconfigured issue on appeal. The letter explained that although phrased in two different ways, the issue on appeal was in fact the same at his two prior Board hearings, and that he is entitled to have an additional hearing held before a third VLJ who will be assigned to the panel to decide his appeal. The Veteran responded to this letter indicating that he wished to waive his right to appear at an additional hearing before a third VLJ, and that he wished the Board to consider his case on the evidence of record and immediately proceed without delay to issue a panel decision concerning the issues. See the Veteran's January 8, 2013 response letter. In March 2013, this matter was last before the Board, at which time it was remanded for further development. In particular, the claim was remanded to obtain a retroactive medical opinion to address the severity of the condition on appeal during the relevant period. That development was completed and the matter is now ready for appellate consideration by the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT Throughout the applicable period, the Veteran's left knee disability has been manifested by flexion of the left knee limited, at most, to 60 degrees, and by extension limited, at most, to 20 degrees; it has not been manifested by ankylosis, recurrent subluxation, lateral instability, dislocation of the semilunar cartilage or residuals of removal of the semilunar cartilage, impairment of the tibia and fibula or genu recurvatum. CONCLUSION OF LAW From June 13, 2001, though January 27, 2005, the criteria for an evaluation of 30 percent, but no greater, for a left knee disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id.; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus, that burden has not been met in this case. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). in a June 2001 letter, the Veteran was informed of the information and evidence necessary that would substantiate his claim to reopen and ultimately for service connection, as well as the allocation of responsibilities between him and VA. In letters dated in February 2005 and August 2009, the Veteran was advised of how to substantiate his claim for an increased evaluation, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim. The claim was readjudicated subsequent to the issuance of these letters. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence and afforded the Veteran physical examinations. All known and available records relevant to the issue adjudicated on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings 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). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted 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." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left knee disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261. Diagnostic Code 5010 refers the rater to evaluate the condition as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5261 provides for evaluation of limitation of extension of the leg. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Id. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Id. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero 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. Id. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. Id. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts VA received the Veteran's claim for service connection of a left knee disability on June 13, 2001. In August 2001, he underwent a VA Agent Orange Registry examination. At this time, he reported subjective complaints of constant knee pain and occasional buckling, as well as intermittent locking. It was noted that the Veteran was retired. A physical examination of the Veteran's knees showed bilateral joint line tenderness and crepitus. Range of motion was from 0 to 130 degrees. The impression was degenerative joint disease (DJD) of the knees. In October 2001, the Veteran was afforded a VA examination of the joints. At this time, he reported subjective complaints of pain, popping, cracking, locking, and occasional flare-ups. These symptoms were exacerbated by prolonged standing as well as bending down. He denied swelling and used no assistive devices. Cold weather made the knee worse and it was very stiff in the morning when he first woke up. The Veteran was retired and as such, his knee problems did not affect his work. During flare-ups his knee would get "hot" and he tried different creams to help with the knee pain. An examination of the Veteran's left knee showed evidence of severe crepitus and tenderness along the medial and lateral joint line. No evidence of effusion, erythema or instability was found, however. The McMurray, Drawer, and Lachman tests were negative. The Veteran's reflexes were normal and the examiner described the Veteran's strength as "adequate, but limited by his apprehension because of pain." Flexion was to 100 degrees without pain and extension was limited by 5 degrees because of pain. X-rays showed evidence of bilateral degenerative joint disease (DJD) and bilateral patellofemoral DJD. The examiner did not address whether there was any further limitation, including limitation of motion, following repetitive use. A follow-up VA treatment note dated July 2002 found the Veteran to have full range of motion in the knees bilaterally. No evidence of edema was found. The impression was probable osteoarthritis. An August 2002 VA orthopedic treatment note documents continued complaints regarding the knees. Examination revealed that the knees were not then inflamed, but there was positive crepitus around the patella of the left knee with passive flexion and extension. Flexion was to 110 degrees. Extension was to zero degrees. The Veteran was seen by VA in September 2002 for additional care and a physical medicine and rehabilitation consultation. He reported subjective complaints of bilateral knee pain without swelling. The Veteran's past medical history was significant for DJD of the knees. An examination of the Veteran's knees showed evidence of crepitus. No evidence of inflammation or effusion was found. Range of motion testing was from zero to 100 degrees. The impression was bilateral knee pain secondary to DJD. A subsequent September 2002 VA physical therapy treatment note revealed flexion to 90 degrees bilaterally. Knee strength was assessed as 3/5. The Veteran testified at a Central Office hearing before the Board in October 2003. At this time, he reported subjective complaints of knee pain, giving way, stiffness, and buckling. He also related having difficulty climbing stairs and that he slept with a pillow between his legs to relieve symptoms. He testified that he also obtained some relief from his symptoms with medication and physical therapy. The Veteran also stated that he was unable to get out of a chair without holding onto the armrest, and that when ascending or descending stairs he had to use both feet on each stair when doing so. He denied then using a brace or a cane to assist in ambulation. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the 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, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. Following the hearing, the case was remanded in order to obtain additional treatment records and to afford the Veteran a VA examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In March 2004, the Board remanded the claim for an increased evaluation of the Veteran's left knee disability to afford him a new VA examination, finding that the October 2001 VA examination was inadequate, in that it did not address all of the pertinent disability factors set forth in 38 C.F.R. §§ 4.40 and 4.45 (2012), to include the extent of functional loss due to pain. See also DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Notably of record, is a private rheumatology consultation from Kaiser Permanente dated in June 2004 in connection with mixed connective tissue disease. A physical examination of the Veteran's left knee showed severe crepitus and pain at the joint line. Range of motion was from zero to 90 degrees. The impression was "knee DJD, recommend steroid injection for relief." The Veteran declined the injection at that time. The Veteran presented at Kaiser Permanente for a private rheumatology appointment in July 2004. At this time, he reported subjective complaints of persistent bilateral knee pain and stiffness after getting up from prolonged rest. He denied swelling. A physical examination of the Veteran's left knee showed severe crepitus and pain at the joint line. No evidence of swelling was found. Range of motion was from zero to 90 degrees. X-rays were interpreted to show degenerative changes with medial and lateral osteophyte formation and possible lateral chondrocalcinosis. Moderate to advanced degenerative changes of the patellofemoral articulation were also noted. The impression was knee DJD. The Veteran was subsequently given a steroid injection for relief. In accordance with the Board's remand directives, the Veteran was afforded another VA examination on January 27, 2005. At this time, he reported subjective complaints of daily knee pain, buckling, and giving way. He also related that he experienced popping and cracking, and had difficulty bending and squatting. The Veteran's symptoms were exacerbated by prolonged sitting, driving, bending, and kneeling. On physical examination it was noted by the examiner that the Veteran's knees were flexed to about 90-100 degrees while he was getting up from a chair. While sitting on the end of the examination table his knees were flexed to 90 degrees. Passive extension was limited to 20 degrees with pain. Against mild to moderate resistance he had 60 degrees of flexion. On passive extension, he had pain at about 60 degrees and the examiner could straighten his left knee out until it was lacking about 15 degrees of full extension with pain. The examiner further found that there was full range of motion on extension and that the Veteran could flex to about 90-95 degrees with pain on the final 20 degrees. The Veteran's ligaments were intact and the Veteran was able to perform straight leg raise testing to about 20 degrees. The examiner also noted evidence of very mild swelling and mild patellofemoral pain with some patellofemoral compression. X-rays were interpreted to show mild degenerative osteoarthritic changes, mainly involving the medial aspect of the knee. Bilateral patellofemoral DJD was also noted, but no evidence of fracture or dislocation was found. The examiner also found evidence of moderate incoordination, weakness, and excess fatigability in the Veteran's left knee. According to the examiner, repeated use could result in flare-ups and continued pain, but the examiner was unable to determine the amount of additional loss of range of motion without resorting to speculation because of the subjective nature of pain. The reason for this, according to the examiner, is that he could not say how much pain was coming from the hip disorder or how much was coming from the knee disorder. The impression was degenerative osteoarthritis of the knees, including the patellofemoral joints. The examination report is adequate and substantially complies with the remand order as the examiner conducted a review of the history and a physical examination. The examination report included range of motion studies, identified the effects of pain on motion, and provided a rationale for why additional information as to limitation of motion could not be provided. Also associated with the claims file are additional private treatment records from Kaiser Permanente. The Veteran's subjective complaints of knee pain and difficulty bending are well-documented in these records. Diagnoses of degenerative arthritis are also noted. However, the Board points out that aside from the records described above, the remainder of the private treatment records for the period of time in question do not contain range of motion measurements for the left knee. In October 2010, the Veteran testified at another Board hearing. He stated that he received medical care through VA as well as Kaiser Permanente. He further stated that he should have been rated 30 percent disabled all along due to the nature of the knee condition and the arthritis. The Veteran testified that during the time period in question he had pain, buckling, lost the ability to walk up and down steps naturally, and it was very painful to bend down to pick something up off the floor. Although the issue was identified as whether an earlier effective date was warranted for the grant of the 30 percent disability rating, the Veteran provided testimony as to the severity of his symptoms during the time in question and identified relevant treatment records. To the extent that there was error in identifying the issue this did not result in prejudice to the Veteran in light of the testimony that was provided. Moreover, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. It is also noted that the Veteran reported, during the hearing, that he received physical therapy from VA in approximately 2000 or 2001. The VA treatment records have been obtained and reflect that he was seen for an Agent Orange Registry evaluation in 2001 and thereafter was seen as a new patient by VA in July 2002. VA medical records thereafter reflect that the Veteran underwent physical therapy. Accordingly, the records referenced by the Veteran are of record and there is no indication that there are pertinent records that are outstanding. As outlined herein above, in March 2013, the Board remanded this claim to obtain a retroactive medical opinion to address the severity of the service-connected left knee disability for the period of June 13, 2001, to January 27, 2005. In April 2013, a retroactive medical opinion was obtained. A review of the April 2013 VA opinion documents that the examiner had the benefit of the claims file and reviewed it, but did not feel that physical examination of the Veteran was necessary to render the requested opinion. The examiner first noted that he had reviewed the claims file, to include Veteran's service treatment records, and outlined the pertinent historical medical evidence. In this regard, the examiner stated that the evidence dated from 2001 to 2005 showed that the Veteran had moderate DJD of the left knee with pain during this time. He also found that the objective evidence of record did not show weakened movement, instability or excess fatigability during this period. He explained that during this period the Veteran successfully completed a physical therapy program, did not need continued use of his cane and, saliently, was able to successfully complete a cardiac stress (exercise) treadmill test. With respect to range of motion, he noted that during the period in question, range of motion varied unpredictably ranging from normal to restriction of flexion to 90-95 degrees. Along these lines, the examiner explained that due to these fluctuations in range of motion metrics, he could not draw any conclusions regarding any changes therein. He also explained, that the medical records, as distinct from the Veteran's subjective reports, during the period of 2001 to 2005, provided no objective documentation of "locking," "buckling," or "giving way." He also stated that no medical records within this period showed any left knee instability. Analysis The Veteran asserts that VA is at fault in "dragging its feet" to schedule the January 2005 VA examination, upon which the RO granted a 30 percent evaluation. He contends that during the applicable period, his left knee condition was indeed as severe as reflected in the January 27, 2005, VA examination report, and thus requests that an increased evaluation be granted during the period in question. See e.g. March 2010 VA Form 1-646. Initially, the Board points out that Diagnostic Codes 5256, 5257, 5258, 5259, 5262 and 5263 cannot provide for either a higher evaluation or a separate evaluation. As outlined above, ankylosis, recurrent subluxation or instability, and dislocated or removed semilunar cartilage have not been demonstrated. Moreover, no impairment of the tibia and fibula or genu recurvatum has been shown. 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). While the Veteran has reported that he experienced locking, the evidence does not show that the Veteran has dislocation of the semilunar cartilage. No deficits with respect to his menisci have been shown on examination or in the medical records. Therefore, the Board finds that while the Veteran is competent to report that he experiences locking, the medical evidence outweighs any lay assertion that he has a meniscal abnormality. The clinicians have specifically tested for meniscal abnormality, including by way of the McMurray test, and such testing has been negative. The medical evidence does not include any diagnosis with respect to a meniscal abnormality and therefore a separate rating for dislocated semilunar cartilage pursuant to Diagnostic Code 5258 is not warranted. In addition, as the Veteran has not had his semilunar cartilage removed, a separate rating pursuant to Diagnostic Code 5259 is likewise not warranted. The Board also acknowledges the Veteran's assertions of instability of his left knee during the period involved in the present appeal. Nevertheless, repeated VA examination has shown the knee to be stable. Testing of the ligaments of the knees has always been normal. VA examination in October 2001 showed no evidence of instability and drawer and Lachman testing were normal. Although not dated squarely the appeal period, on VA examination in January 2005, examination showed intact ligaments. Most notably, the recently obtained retroactive medical opinion shows no instability or subluxation during the period in question and these findings are reflected by the objective evidence of record, particularly ligamentous testing. Thus, despite the Veteran's lay observations of buckling and giving way, which are considered competent, assertions that he has instability of the knee joint are outweighed by the more probative medical evidence. Clinicians have conducted testing specifically to ascertain whether there is instability and have found no abnormalities. This evidence is entitled to greater weight based on the medical knowledge of the clinicians and the testing they conducted in order to determine whether instability is present. Thus, in order to attain an evaluation in excess of 10 percent for the left knee, the criteria for such an evaluation must be met under either Diagnostic Code 5260 or 5261, which provide for evaluation of limitation of flexion and extension, respectively. As noted above, the Veteran has asserted that the January 2005 VA examination is representative of the severity of his left knee disability during the period of June 13, 2001, to January 27, 2005. The Board has, in its March 2004 remand, concluded that the evidence of record at that time was insufficient to decide the claim, particularly in that it did not adequately address the pertinent disability factors set forth in 38 C.F.R. §§ 4.40 and 4.45 (2012), to include the extent of functional loss due to pain. See also DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The Board also sought a retroactive medical opinion. However, the recently obtained retroactive medical opinion does not shed any new light on the degree of limitation of motion during this period. In that regard, the examiner stated that the question could not be addressed without resorting to speculation, and provided reasons therefore. In affording the Veteran the benefit of every doubt, the Board concludes that the evidence indicates that extension was limited to 20 degrees, thus substantiating entitlement to a 30 percent evaluation during the period on appeal. In this regard, the Board notes that it was not until January 27, 2005, that the evidence of record objectively demonstrated extension of the left knee limited to 20 degrees. However, the retroactive medical opinion is speculative in nature and the evidence of record dated from June 13, 2001, to January 27, 2005, is insufficient to address limitation of motion. This, coupled with the Veteran's assertions that his knee disability has been at the same level throughout the period of time at issue brings the evidence to equipoise with respect to whether extension of the left knee was limited to 20 degrees during June 13, 2001, to January 27, 2005. Accordingly, the claim is granted to this extent. Gilbert, supra. However, during this period, an evaluation in excess of 30 percent for limitation of extension is not warranted. No evidence dated within this period documents limitation of extension to 30 degrees or more. At most, with consideration of the January 27, 2005, VA examination findings and the Veteran's subjective complaints, extension has been limited to 20 degrees, to include consideration of the DeLuca factors. The Veteran's limited motion contemplates the noted incoordination, pain, weakness and excess fatigability and the Veteran has not asserted that he experiences additional limitation of motion on flare-ups or continued use. Likewise, the Board notes that the evidence, as outlined above, has never shown flexion limited to 45 degrees or less such that a separate compensable evaluation for flexion would be warranted at any time during the applicable period. With consideration of the evidence dated within the relevant period, the evidence shows flexion limited, at most, to about 60 degrees, to include with consideration of the DeLuca factors and the January 27, 2005, VA examination results applied retroactively due to the inadequacies of the evidence dated prior thereto. As the evidence does not show flexion approaching limitation to 45 degrees or less, no doubt can possibly be resolved in the Veteran's favor. Gilbert, supra. Again, the limited motion contemplates factors such as incoordination, pain, weakness and excess fatigability and the Veteran has not asserted that he experiences additional limitation of motion on flare-ups or continued use. The Board has also considered whether a separate evaluation is warranted on the basis of the deficit in knee strength, 3/5, that was noted on one occasion during the applicable period. However, as Diagnostic Codes 5313 to 5315 contemplate muscle group deficits affecting the hip and range of motion of the knee, and the Veteran is already rated for limitation of motion of the knee, to assign a separate rating under one of these codes would constitute impermissible pyramiding. Extraschedular Consideration 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 first 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 and Pension 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 condition is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left knee disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran experiences symptoms, including tenderness, weakened movement, incoordination, excess fatigability, pain, crepitus, popping, cracking, and flare-ups of pain, which ultimately result in limitation of motion. The criteria particularly contemplate his specific symptoms of limitation of function and painful motion. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating of 30 percent, but no greater, for a left knee disability, dating from June 13, 2001, to January 27, 2005, is granted, subject to the laws and regulations governing the award of monetary benefits. ______________________ __ ______________________ __ JACQUELINE E. MONROE MICHAEL A. PAPPAS Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ______________________ __ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs