Citation Nr: 1330659 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 03-24 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the period prior to February 7, 2011, and a compensable rating thereafter, for chronic right patellar dislocations. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1968 to April 1970. He has also served in the U.S. Air Force Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for degenerative arthritis of the right knee and assigned a 10 percent evaluation for that disabilty, as well as increased the disability rating from 10 percent to 30 percent for chronic right patellar dislocations. Jurisdiction of the claims file was subsequently transferred to the RO in Atlanta, Georgia. In January 2005, March 2008, July 2010, July 2012 and March 2013, the Board remanded this case for additional development. During the course of the appeal, in an August 2011 rating decision, the RO decreased the Veteran's disability rating for chronic right patellar dislocations from 30 percent disabling to noncompensable, effective February 7, 2011. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding that separate ratings for distinct periods of time may be awarded based on the facts). The Board notes that the RO's discontinuance of a 30 percent rating for chronic right patellar dislocations appears tantamount to a rating reduction. Notice requirements for rating reductions are governed by 38 C.F.R. § 3.105 (2012). Although generally the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions are required to be followed by VA prior to issuing a final rating reduction, these due process requirements are not applicable in the present matter. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Significantly, the due process provisions of 38 C.F.R. § 3.105(e) are only properly applied where the rating reduction would result in a reduction in the Veteran's overall disability evaluation, such that VA disability compensation payments would be reduced or discontinued. See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); VAOPGCPREC 71-91 (Nov. 7, 1991). In the present matter, the reduction did not impact the level of the Veteran's disability compensation, as the Veteran was receiving a total disability rating as of January 17, 2006, at that time. Thus, the Veteran's compensable payments were not reduced at that time. In turn, the provisions of 38 C.F.R. § 3.105(e) are not applicable. Id. Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, in its July 2012 decision, the Board determined that the Veteran met the criteria for a TDIU as of January 14, 2005. The Board found that, as the Veteran reported to VA that he was substantially gainfully employed until January 13, 2005, the issue of TDIU was not raised prior to the January 14, 2005, effective date. In a July 2012 rating decision, the RO effectuated the Board's decision. As the Veteran has been awarded a TDIU from the last date of his employment, there is no need for further analysis with respect to this matter. As a final preliminary matter, the Board observes that in addition to the paper claims file, there is a Virtual VA paperless (electronic) claims file associated with the Veteran's appeal, which has also been reviewed by the Board. The electronic record includes additional VA treatment records not in the claims file, which were reviewed by the RO in the most recent supplemental statement of the case issued in June 2013. The Veteran's electronic record also includes a July 2013 informal hearing presentation submitted by the Veteran's representative. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's service-connected chronic right patellar dislocations have more nearly approximated severe recurrent subluxation or lateral instability. 2. Throughout the course of the appeal, the Veteran's service-connected degenerative joint disease of the right knee is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, dislocated or removed semilunar cartilage, ankylosis, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. Throughout the course of the appeal, the criteria for a 30 percent disability rating, but no higher, for chronic right patellar dislocations, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Code 5257 (2012). 2. The criteria for entitlement to an initial disability evaluation in excess of 10 percent for degenerative joint disease of the right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the instant case, the Veteran's claim for an initial higher rating for degenerative joint disease of the right knee arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the issue of entitlement to an increased rating for right patellar dislocations, the Veteran was sent a letter in August 2010 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that complete notice was not issued prior to the adverse determination on appeal. However, after fully compliant notice was issued in August 2010, and the claim was thereafter readjudicated in subsequent supplemental statements of the case, most recently in June 2013. Thus, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of private treatment and VA treatment as well as VA examinations. Again, a review of Virtual VA reveals additional VA treatment records that were considered by the RO in the June 2013 supplemental statement of the case. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, the Veteran was afforded VA examinations in October 2002, October 2005, June 2009, February 2011, and July 2012 to evaluate the severity of his service-connected right knee disabilities. The Board finds that the VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent July 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). Finally, the Board finds that there was substantial compliance with the Board remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, in its prior remands, the Board directed the RO to send the Veteran VCAA notice, to include notice of the requirements for extraschedular evaluation, obtain any identified outstanding treatment records and service medical records, and afford him VA examinations. As noted above, fully compliant VCAA notice was sent to the Veteran in August 2010. Moreover, the Veteran was sent information concerning extraschedular evaluations in July 2010. In September 2008, the RO requested additional service treatment records for the Veteran from the National Personnel Records Center and received a negative response. In October 2008, the RO informed the Veteran that it had requested records twice from the Air Reserve Personnel Center and Maxwell Air Force Base. Further, the claims file includes treatment records from Maxwell Air Force Base as well as the Veteran's service medical records. Moreover, VA treatment records dated through April 2013 have been associated with the record. Also, as discussed above, the Veteran has been afforded adequate VA examinations throughout the course of the appeal, most recently in July 2012. In its most recent remand in March 2013, the Board directed the RO to obtain additional VA treatment records from the VA Medical Centers in Birmingham, Montgomery and Tuskegee and give the Veteran an opportunity to submit private medical evidence, to specifically include from Physiotherapy Associates. Again, additional VA treatment records from Montgomery and Tuskegee were associated with the Veteran's Virtual VA electronic record. There were no additional treatment records available from the Birmingham VAMC and the RO informed the Veteran of this fact in a May 2013 letter. In April 2013, the RO also requested that the Veteran submit authorization to obtain records from Physiotherapy Associates. The Veteran did not submit an authorization for these records. However, authorization was submitted to obtain records from Personal Care Center. The RO requested such records in May and June 2013 letters to which it received no response. In a June 2013 letter, the RO informed the Veteran that these records had not been obtained. Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). II. Laws and Regulations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With respect to the issue of an increased rating for chronic right patellar dislocations, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). As with the issue of an initial higher rating for arthritis of the right knee, where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The Veteran's degenerative joint disease of the right knee has been rated by the RO as 10 percent disabling under Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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. 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, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. With respect to limitation of motion of the knee, Diagnostic Code 5260 provides that a rating of 20 percent is warranted for flexion limited to 30 degrees. A 20 percent disability rating is allowed under Diagnostic Code 5261 when extension of the leg is limited to at least 15 degrees. (Under the limitation of motion codes, higher evaluations are available for greater limitation of motion.) The Veteran's chronic right patellar dislocation has been rated under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the knee. Slight recurrent subluxation or lateral instability is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability is rated as 20 percent disabling; and severe subluxation or lateral instability is rated as a maximum 30 percent disabling. Further, as in the instant case, the Board notes that separate ratings may be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. The Board also notes VA General Counsel Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), where 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 diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Normal range of motion is zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71(a), Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. III. Factual Background In March 2002, the Veteran filed a claim indicating that his right knee disability had worsened and that he now believed he had arthritis of the right knee. He reported constant pain and that his knee regularly popped out of place. A July 2002 treatment record from Maxwell Air Force Base showed an assessment of degenerative joint disease of the right knee. A July 2002 x-ray showed enlargement of the intercondyle notch, small bone island at the proximal tibia, small osteophytes off the lateral femoral condyle and subchondral type cystic degenerative changes noted involving the lateral tibial plateau. The Veteran was afforded a VA examination in October 2002. He reported that his knee cracked and popped and frequently went out of joint. He indicated that it hurt so bad that he urinated in his clothing trying to get the knee back in joint. The knee popped out of joint daily. The examiner noted that the Veteran had degenerative joint disease of the right knee with osteophytes with spontaneous right patellar dislocations. The examiner noted the July 2002 x-ray findings and indicated that it showed degenerative changes. On physical examination, range of motion was zero degrees to 90 degrees flexion. He had no effusions. McMurray's and Lachman's were negative. The examiner was not able to test for anterior drawer sign due to pain, but suspected it was negative. He had one inch quadriceps atrophy. The diagnosis was history of chronic right patellar dislocations with moderate-severe functional impairment. In December 2002, the RO increased the disability rating for chronic right patellar dislocations to 30 percent and assigned a separate rating for degenerative arthritis of the right knee. In subsequent statements, the Veteran reiterated that he experienced constant pain that impacted his ability to perform his activities as well as his job performance. He also requested extraschedular consideration for his chronic right patellar dislocations. Treatment records from Maxwell Air Force Base dated in March 2005 documented osteoarthritis of the right knee, but provided no further findings for rating purposes. The Veteran was afforded another VA examination in October 2005. The claims file was reviewed. The Veteran reported giving way, swelling, constant pain and that the joint locked up. He also had difficulty sleeping and required assistance getting dressed and on occasionally needed help bathing. On examination, it was noted that the Veteran walked with a limp and used a cane. He needed assistance getting his shoes and socks off. He also had difficulty turning on the examination table. The Veteran had an operative scar 4 cm in length in the anterior medial aspect of the joint and a 3 cm scar in the posterior medial aspect. The scars were nontender and nonadherent. Range of motion was zero degrees extension to 110 degrees flexion. No joint effusion was present. There was no patella instability. Drawer sign both anteriorly and posteriorly were negative. There was no lateral or medial instability. There was no meniscal tenderness present. There was a fullness in the anterolateral aspect and crepitus on motion. There was negative McMurray's sign both medially and laterally. After repetitive use, there was an additional 10 degrees loss of flexion due to pain. X-ray of the right knee showed marked lateral narrowing in the femorotibial space; osteophyte formation both femur and tibial laterally; marked narrowing of the lateral joint space; and medial joint spaces were well-maintained. The diagnosis was moderately severe degenerative joint disease of the right knee. The examiner was unable to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or use as this would be speculative. VA treatment records showed that in October 2005, the Veteran first presented to the VA. On examination, right knee surgical scars were observed. There were crepitations bilaterally and limited range of motion on the right knee. It was also noted that the Veteran had lateral and medial motion instability. In January 2006, the Veteran underwent a surgery consult for his right knee. On physical examination, there was valgus knee, approximately 10 degrees. He had tenderness on the lateral joint line. He had mild laxity on this MCL, no laxity in his ACL, PCL or lateral side. Range of motion was considered fairly decent from about five degrees down to full extension to 110 degrees flexion with crepitus throughout. He had positive patella grind. The impression was advanced degenerative joint disease of the right knee. In May 2006, the Veteran presented complaining of bilateral knee pain and requested a knee brace to help with pain. X-rays showed moderate osteoarthritis of both knees. On physical examination, there was no edema and range of motion appeared to be full and pain free. There was some medial joint line tenderness and more so in the suprapatellar area. There was no medial or lateral instability. Strength was within normal limits. The Veteran was afforded another VA examination in September 2006 to assess his service-connected disabilities for purposes of TDIU. The claims file was reviewed and the examiner observed that he was examined by an orthopedist specialist in 2005. The Veteran reported that his service-connected knees and hips interfered with his daily activities because of pain level. It was noted that he ambulated with a cane and wore a right knee brace. He had difficulty sitting on exam table or chair due to increased pain. No further findings with respect to the right knee were given. The diagnosis was osteoarthritis of bilateral knees. The Veteran was afforded another VA examination in June 2009. The claims file was reviewed. The Veteran reported sharp burning pain with flare-ups every two days that lasted a day. Standing and walking caused him increased discomfort. On physical examination, the Veteran had full extension and was able to flex to 95 degrees. After repetitive use, there appeared to be no increased loss of motion due to pain, fatigue, weakness, lack of endurance or incoordination. There appeared to be no medial-lateral or anterior-posterior instability. There was some tenderness noted medially at the joint line. There was no joint effusion, heat or redness noted. McMurray's was negative. Two scars were noted again. There appeared to be crepitus on passive motion. There was no patellofemoral compression pain. Limitations of motion were associated with moderate discomfort. A contemporaneous x-ray showed medial joint narrowing, but no osteophytes or other bone or joint abnormalities were noted. There were also no soft tissue abnormalities. The diagnosis was mild to moderate degenerative joint arthritis of the right knee. The examiner characterized the Veteran disability as moderate. The Veteran was afforded another VA examination to assess the severity of his right knee disability in February 2011. The Veteran reported weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, pain and dislocation. There was no drainage, effusion or subluxation. He reported experiencing flare-ups as often as three times per day for approximately 10 hours with the severity being an 8 out of 10. During flare-ups, he experienced functional impairment described as no standing, long running, bending or stooping. He reported difficulty with standing/walking. Flare-ups were precipitated by physical activity, food and stress and alleviated with medications. On physical examination, the examiner observed that the right knee scars were not painful and caused no limitation of function. The Veteran walked with an abnormal gait due to knees and left hip pain. The right knee was tender but without edema, instability, abnormal movement, effusion, weakness, heat, deformity, guarding of movement, malalignment or drainage. There was no subluxation, locking pain, genu recurvatum, crepitus or ankylosis. Range of motion was zero degrees extension to 90 degrees flexion. Repetitive range of motion was possible and there was no additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. There was no change in diagnosis. The subjective factors were right knee pain, stiffness and tenderness and the objective factors were right knee scar, pain and tenderness. He also had limited range of motion during exercise. Based on the findings of normal stability at this examination, the RO decreased the Veteran's disability rating for chronic right patellar dislocations to noncompensable. A May 2011 VA treatment record showed that on examination on the right knee, there was medial and joint line tenderness as well as 8 degrees valgus. Range of motion was zero to 80 degrees. Although there was no swelling or redness, the examiner observed severe crepitus. Motor strength was 4 out of 5. Gait was antalgic. Anterior and posterior drawer tests were negative, but mediolateral laxity was observed. Lachman's was negative. The impression was degenerative joint disease. At that time, he was also fitted for a right neoprene hinged knee brace wrap around style. It was observed that the function of the brace was appropriate to reduce collateral ligament instability. A November 2011 record showed positive findings for M/L collateral ligament instability. Range of motion was to 105 degrees flexion with expression of pain. The Veteran underwent another VA examination most recently in July 2012. The Veteran reported daily knee pain that was moderate to severe. Medications helped decrease some pain, and he followed the VA for his care at least three times a year. The Veteran did not report flare-ups that impacted the function of his knee. Range of motion was 60 degrees flexion with pain beginning at zero degrees. Extension was zero degrees. The Veteran was unable to perform repetitive testing due to severe pain. It was observed that the Veteran had functional loss and/or impairment of the knee. He had less movement than normal, incoordination and pain on movement. There was tenderness on palpation. The Veteran had normal strength and joint stability testing was normal. The examiner found no evidence of recurrent patellar subluxation or dislocation. The Veteran used a brace constantly. The examiner observed that a November 2011 x-ray showed moderate to severe degenerative changes. Follow up treatment records continued to show treatment for the right knee and document the continued need for brace for instability. An August 2012 treatment record documented that the Veteran reported pain and right knee swelling. In April 2013, it appears that he was fitted for a new brace. An April 2013 x-ray showed moderate degenerative changes and loss bodies similar to prior. IV. Analysis Chronic Right Patellar Dislocations Prior to February 7, 2011, the Veteran was receiving the maximum 30 percent schedular rating for recurrent subluxation or lateral instability. As such, the main question is whether a compensable rating is warranted from February 7, 2011. After reviewing the totality of the evidence and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's disability more nearly approximates severe recurrent subluxation or lateral instability throughout the course of the appeal. The Veteran has consistently reported pain and that his right knee gives way. Moreover, just a few months after the February 2011 VA examination, which was the basis for assigning a noncompensable rating, treatment records noted findings of instability and that a brace was prescribed. In sum, although the VA examiners have indicated that stability testing was normal, VA treatment records continued to show findings of right knee collateral ligament instability and that the Veteran was prescribed a brace to wear for such instability. As such, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, a 30 percent disability rating is warranted for his recurrent dislocations throughout the course of the appeal. See 38 U.S.C.A. § 5107(b). Moreover, as discussed further below, extraschedular consideration is not appropriate as the schedular rating criteria reasonably contemplate the Veteran's symptoms. The remaining criteria with respect to the knee and leg are addressed in more detail below with respect to rating the Veteran's degenerative joint disease of the right knee. Degenerative Joint Disease of the Right Knee After reviewing the evidence of record, the Board must conclude that a rating in excess of 10 percent for the Veteran's right knee degenerative joint disease is not warranted. Even considering additional functional loss due to pain, there is no evidence that flexion is limited to 30 degrees or extension is limited to 15 degrees so as to warrant assignment of a higher rating under Diagnostic Codes 5260 or 5261. Extension has always been normal on examination and the most restrictive flexion was to 60 degrees at the most recent VA examination in July 2012. The Veteran has reported chronic right knee pain and thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the current 10 percent. Although the Veteran was unable to perform repetitive testing at the most recent VA examination, he was able to flex to 60 degrees and he denied any specific flare-ups. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, does not itself constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 11; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion. In conclusion, the preponderance of the evidence in this case is against a finding that the criteria for a rating in excess of the current 10 percent have been met under any applicable Diagnostic Codes for the Veteran's service-connected degenerative joint disease of the right knee. As the preponderance of the evidence weighs against the claim for an increased rating, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Other Considerations In turning to the remaining diagnostic codes, the Board notes that Diagnostic Codes 5258 and 5259 pertain to dislocated and removed semilunar cartilage, respectively. In the instant case, there is no indication that the Veteran's meniscus is symptomatic or has been removed. Therefore, such Diagnostic Codes are inapplicable. Additionally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively. Again, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right knee disabilities however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right knee disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's right knee symptomatology is fully addressed by the rating criteria under which such disabilities are rated. In this regard, the Veteran's 10 percent rating contemplates his arthritis and painful motion. Moreover, the separate 30 percent rating fully contemplates his severe instability requiring the need of a brace. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected right knee disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Throughout the course of the appeal, a 30 percent rating, but no higher, for chronic right patellar dislocations, is granted, subject to the law and regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs