Citation Nr: 1330870 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 06-03 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation (rating) in excess of 10 percent for chondromalacia of the right knee with traumatic arthritis (a right knee disability). 2. Entitlement to an increased evaluation (rating) in excess of 10 percent for chondromalacia of the left knee with traumatic arthritis (a left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from December 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Historically, in an April 2011 decision, the Board denied entitlement to increased ratings in excess of 10 percent for chondromalacia of the bilateral knees with traumatic arthritis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court granted a Joint Motion for Remand (JMR). In the November 2011 Order, the Court vacated only the part of the Board's April 2011 decision which denied increased ratings for bilateral chondromalacia of the knees and remanded the case for compliance with instructions provided in the JMR. In July 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC to afford the Veteran a VA examination. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the July 2012 Board Remand is included in the Duties to Notify and Assist section below. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. In the July 2012 decision, the Board also remanded the claims of entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder and entitlement to a total disability rating due to individual unemployability (TDIU). In a February 2013 rating decision, the RO awarded a 100 percent rating for the service-connected acquired psychiatric disorder with an effective date of October 9, 2003, the date of claim. As a 100 percent rating is the maximum rating available for psychiatric disabilities, the issue as to whether a higher initial rating is warranted is moot and, thus, will not be considered herein. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Also, in this regard, the grant of a 100 percent rating for an acquired psychiatric disorder renders the claim for a TDIU moot for the entire appeal period (as the effective date of the total rating for an acquired psychiatric disorder is the date of claim). See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (the award of a 100 percent schedular disability rating effectively moots a claim for entitlement to a TDIU from the effective date of the 100 percent rating). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran's right knee disability was established by X-ray evidence of degenerative joint disease of the right knee, and manifested pain that resulted in noncompensable limitation of motion; the right knee disability has not manifested ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, malunion or non-union of the tibia and fibula with loose motion requiring a brace, or genu recurvatum. 2. The Veteran's left knee disability was established by X-ray evidence of degenerative joint disease of the left knee, and manifested pain that resulted in noncompensable limitation of motion; the left knee disability has not manifested ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, malunion or non-union of the tibia and fibula with loose motion requiring a brace, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2013). 2. The criteria for an evaluation in excess of 10 percent for service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. February 2003, June 2004, March 2007, and March 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The claim was last readjudicated in an April 2013 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA treatment reports, have been secured. The RO arranged for VA examinations in February 2003, March 2004, January 2005, March 2009, and April 2013 (pursuant to the July 2012 Board Remand). These examinations, taken together, are found to be adequate for rating purposes of the issues adjudicated herein. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall, 11 Vet. App. at 268. Also, in this regard, the Board found the March 2009 VA examination to be inadequate, following the November 2011 JMR and Court Order, only as far as the March 2009 VA examiner did not explain why he could not provide an opinion as to the Veteran's functional limitations during flare-ups of knee pain. While the claims were remanded due to an inadequacy of a portion of the March 2009 VA examination, the fact that one part of a medical examination may be inadequate (or arguably "insufficient") does not render the entire examination "void," particularly dealing with objective orthopedic test results and the Veteran's lay statements. Indeed, the deficiency was resolved in the April 2013 VA examination and the Board will discuss the March 2009 examination only as it pertains to the objective orthopedic results and the Veteran's own reports, specifically regarding instability and diagnosis. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Bilateral Knee Disability Rating Analysis The Veteran contends that current manifestations of the right and left knee disabilities are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the respective 10 percent schedular evaluations now assigned. The RO indicated the 10 percent ratings for the left and right knee were being rated under the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5257-5010 and Diagnostic Code 5257, respectively, although the actual findings regarding slight subluxation or lateral instability were not supported by the record. Diagnostic Code 5257 provides for ratings based on recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Discussed in detail below, while subluxation or lateral instability was not demonstrated during the appeal period, the Board will consider all potentially applicable diagnostic codes in rating the service-connected disabilities. Indeed, the Board has applied the most favorable, applicable regulation (in this case, Diagnostic Codes 5003 and 5010) to ensure the highest possible evaluation of the Veteran's disabilities. The assigned 10 percent disability evaluations are consistent with the 10 percent rating provided under Diagnostic Codes 5257-5010 for arthritis with painful motion that manifests to a noncompensable (less than 10 percent) degree, which the evidence in this case supports. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. §§ 4.71a. Hyphenated diagnostic codes are to be used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. In such cases, the additional code is shown after a hyphen. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Notes (1) and (2). When there is impairment of the knee, specifically recurrent subluxation or lateral instability, Diagnostic Code 5257 provides for a 10 percent evaluation where the recurrent subluxation or lateral instability is "slight," a 20 percent evaluation where the subluxation or lateral instability is "moderate," and a 30 percent evaluation where the subluxation or lateral instability is "severe." 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a. In February 2003, the Veteran underwent a VA examination of the left knee. At that time, he complained of rather significant anterior pain in the left knee on a daily basis, athough with no locking, swelling, heat, or redness. When questioned, the Veteran further indicated that he experienced some fatigability, as well as a lack of endurance, in particular, when climbing stairs, athough with no need for any crutches, brace, or a cane. The Veteran denied problems with dislocations or subluxations, and indicated that, while he was currently not working, this was due to "other problems." Upon physical examination, the Veteran walked without a limp. He did not appear to be in any distress, and range of motion of the left knee was full. Specifically, there was full extension (0 degrees) to 140 degrees of flexion. Both thigh muscles measured 55 centimeters at a point ten centimeters above the kneecaps, indicating no atrophy. The Lachman sign was negative, as well as the McMurray and drawer signs. At the time of examination, there was some evidence of mild patellofemoral crepitation on flexion and extension. While the kneecap was somewhat hypermobile, there was no evidence of subluxation. Radiographic studies of the Veteran's left knee were described as "pretty much normal," with patellofemoral joint spaces which were well preserved. The examiner noted that, while the Veteran showed no need for surgical treatment, he might benefit from physical therapy. During a VA examination of the Veteran's right knee in March 2004, the Veteran complained of pain in the right knee, athough with no weakness, stiffness, or redness. While the Veteran did complain of some fatigability and lack of endurance, he denied any problems with instability, giving way, or "locking up." The Veteran did not utilize crutches, a cane, or corrective shoes, nor had he undergone any surgery for dislocations. Upon physical examination, the Veteran's gait was normal. Range of motion measurements showed extension to 0 degrees, with flexion of the right knee from 0 to 120 degrees, and an active range of motion lacking 20 degrees. The Veteran was able to flex to 125 degrees with passive range of motion, and, following repetitive range of motion, showed flexion to 130 degrees. At the time of examination, there was no evidence of any tenderness, nor was there any evidence of pain with flexion and extension. While following examination, the Veteran did indicate that he was experiencing some pain, the medial, lateral, and collateral ligaments, as well as the anterior/posterior cruciate ligaments appeared to be intact. Significantly, the McMurray, Lachman, and drawer signs were all negative. Radiographic studies of the Veteran's right knee showed evidence of very minimal early osteoarthritic changes involving the patellar articular surface, without other demonstrated abnormality of the right knee. The pertinent diagnosis was history of chondromalacia of the patella of the right knee, with residual decreased range of motion, and occasional pain and degenerative changes. The Veteran was afforded another VA examination of the knees in January 2005. In the January 2005 VA orthopedic examination report, the Veteran indicated that the left knee was "much more problematic" than the right knee. When questioned, the Veteran complained of mild, dull pain in the anterior/medial aspect of the left knee, which radiated up the leg with "flare-ups." The Veteran denied any problems with weakness or stiffness, and stated that, while there might be some slight swelling, he was "not really sure." When further questioned, the Veteran denied any problems with heat or redness; however, he did indicate that, at times, he experienced instability, where his knee would "give out." The Veteran denied any problems with walking, but stated that he did experience some difficulty with fatigability and lack of endurance. At the time of examination, the Veteran complained of crepitus and a popping sensation, in particular, with flexion. However, he took no medications for his service-connected knee disabilities. When asked to describe his flare-ups, the Veteran described them as "self-limiting," lasting only seconds to minutes, with no alleviating factors. When questioned regarding the right knee, the Veteran stated that he experienced less pain, and pain less frequently, in that knee. The Veteran denied any problems with weakness, stiffness, swelling, heat, or redness, and indicated that, while there was some "sensation of instability," it did not occur as often in the right knee as in the left knee. The Veteran denied any problems with locking, and stated that, while he did experience some problems with fatigability, lack of endurance, and crepitus, those problems were not nearly as pronounced in the right knee as in the left knee. When further questioned, the Veteran indicated that he used no assistive devices for either knee, nor had he undergone any surgery for either knee. The Veteran denied problems with recurrent dislocations or subluxations of either knee, and stated that, while he had not worked since 1995, that had "nothing to do with his knees." Upon physical examination, the Veteran's gait and posture were normal. Inspection of the bilateral knees showed no evidence of any edema, effusion, redness, guarding of movement, or tenderness to palpation of either knee. Range of motion measurements of the Veteran's right knee showed extension to 0 degrees, described as "normal and unchanged with repetition." Flexion was to 130 degrees, which was lacking 10 degrees, becoming further reduced to 125 degrees with repetition. The Veteran's right knee showed no evidence of any crepitus or pain, or of any weakness, fatigue, or lack of endurance. Range of motion measurements of the Veteran's left knee showed extension to 0 degrees, which was described as "normal and unchanged with repetition." Flexion was to 125 degrees, which was lacking 15 degrees, becoming further reduced to 120 degrees with repetition. At the time of examination, there was a moderate amount of crepitus noted in the Veteran's left knee. However, further examination showed no evidence of pain, weakness, fatigue, or lack of endurance. At that time, the Veteran's bilateral knees were stable, with negative Lachman, McMurray, and drawer signs. Radiographic studies of the Veteran's knees showed that the joint spaces were within normal limits, with no sclerosis or appreciable hypertrophic spurring involving either the femur or tibia. The radiographic impression was of essentially normal knees. The Veteran underwent a VA examination in March 2009. At that time, the Veteran indicated that the left knee had gotten worse, and that he was unable to stand on that knee "as long as he used to." According to the Veteran, the knee problems stemmed from overuse, but, in general, the range of motion was "OK." When questioned regarding the left knee, the Veteran indicated that he experienced problems with pain, stiffness, and weakness. However, he denied any instability, or episodes of dislocation or subluxation. While according to the Veteran, he sometimes experienced problems with warmth, swelling, and tenderness in his left knee, he denied any episodes of locking or effusion. When questioned regarding the right knee, the Veteran complained of problems with pain and weakness, though with no stiffness, instability, or "giving way." The Veteran indicated that, while at times, he experienced some swelling and tenderness in his right knee, there were no episodes of locking or effusion, or either dislocation or subluxation. On physical examination, the Veteran's right knee showed evidence of crepitus, though with no clicking or snapping, and no grinding or instability. Examination of the Veteran's left knee similarly showed evidence of crepitus, with accompanying tenderness and grinding, but, once again, no clicking or snapping, and no instability. Radiographic studies were consistent with minimal spurring over the superior aspect of the Veteran's right and left patellae, consistent with mild degenerative changes, but an otherwise normal study. The pertinent diagnoses noted were degenerative joint disease of the right and left knees. Pursuant to the July 2012 Board Remand, the Veteran underwent a VA examination of the knees in April 2013. Upon physical examination, range of motion measurements of the Veteran's right knee revealed extension to 0 degrees with no objective evidence of painful motion. Flexion was measured at 140 degrees with no objective evidence of painful motion. Range of motion measurements of the Veteran's left knee revealed extension to 0 degrees with no objective evidence of painful motion. Flexion was measured at 135 degrees with no objective evidence of painful motion. Radiographic evidence of the right knee revealed no significant joint space narrowing and minimal posterior patellar osteophytosis. Left knee X-ray results indicated no significant joint space narrowing and mild, increased density within the suprapatellar bursa that likely represents a small effusion. Further examination demonstrated no weakened movement, no incoordination, no pain on movement, no swelling, no deformity, no atrophy of disuse, no instability of station, no disturbance of locomotion, no interference with sitting, standing, or weight-bearing, and no use of assistive devices. The Veteran's bilateral knees were stable, with normal Lachman and drawer signs. The examiner indicated no evidence, nor history of, recurrent patellar subluxation or dislocation. Ultimately, the examiner noted that there was no report of instability, painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. She also indicated that the examination was negative for instability, painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. As such, the April 2013 examiner concluded that the loss of function due to flare-ups could not be determined without resorting to mere speculation. Indeed, functional loss due to pain, weakness, fatigability, flare-ups, and incoordination has been addressed in VA examination reports, including in February 2003, March 2004, and January 2005. In this case, the weight of the evidence demonstrates no additional functional loss due to pain, weakness, fatigability, flare-ups, and incoordination. Here, the Veteran's bilateral knee disability has been variously diagnosed. They include chondromalacia, degenerative joint disease, and degenerative changes. Given the above, the Board finds that the most favorable diagnosis is the degenerative joint disease under Diagnostic Code 5003 as opposed to Diagnostic Code 5257 under which the Veteran's bilateral knee disabilities were initially rated. Indeed, as discussed fully below, instability or subluxation under Diagnostic Code 5257 would not result in a compensable evaluation. X-ray evidence of record objectively confirmed 10 percent ratings for each knee disability, warranted under Diagnostic Code 5010-5003. Based on the above, the evidence of record does not establish that the Veteran's right and left knee disabilities warrant evaluations in excess of 10 percent disabling for any period on appeal. The Board has considered application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, supra for the entire appeal period, specifically the additional limitations of motion due to pain, fatigability, and weakness, in reaching its finding that the Veteran has limitation of motion to a noncompensable degree. Although the record contained reports that the Veteran experienced pain, fatigability, and weakness, such findings do not provide for higher disability ratings than 10 percent in this case. Indeed, the DeLuca factors go to additional loss of function caused by limitation of motion due to pain, fatigability, and weakness. Even with consideration of pain, fatigability, and weakness, the limitation of motion is only to a noncompensable degree. During the entire appeal period, the limitation of motion did not reveal extension limited to 15 degrees or more, or flexion limited to 30 degrees or less for a 20 percent evaluation, even with consideration of the additional limitation due to pain. The evidence also does not show either compensable limitation of motion of extension (10 degrees) or limitation of motion of flexion (45 degrees) to warrant separate compensable ratings for both limitation of extension and limitation of flexion. See VAOPGCPREC 09-04 (separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint). The Board has additionally considered other Diagnostic Codes to provide the Veteran with the most beneficial disability rating for his bilateral knee disability. See Schafrath, 1 Vet. App. at 595. In this regard, as noted above, the Veteran had near full range of motion during the appeal period even with consideration of pain (i.e., no limitation of motion warranting even 10 percent under limitation of motion diagnostic codes 5260 or 5261); therefore, a higher initial disability rating in excess of 10 percent is not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension. 38 C.F.R. § 4.71a. Also, the evidence, as a whole, does not reveal ankylosis, recurrent subluxation or lateral instability, semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint, impairment of the tibia and fibula by malunion or nonunion, genu recurvatum, or history of removal of semilunar cartilage, the criteria of Diagnostic Codes 5256, 5257, 5258, 5259, 5262 and 5263 do not apply. 38 C.F.R. § 4.71a (2013). In this regard, while the Veteran indicated during the January 2005 VA examination that, at times, his left knee would "give out," and also complained of instability in the right knee, at no time during the course of the current appeal has there been any objective evidence of instability of either knee, as demonstrated by negative Lachman, McMurray, and drawer signs. In fact, the primary manifestation of the Veteran's service-connected knee disabilities appears to be intermittent pain with no evidence of swelling, heat, or redness, and no demonstrable subluxation, locking, incoordination or weakened movement. Also in this regard, the April 2013 examiner indicated left knee, mild, increased density within the suprapatellar bursa that likely represents a small effusion. The Board does not find that this rises to the level of "frequent episodes of effusion into the joint" to warrant a higher disability evaluation of the left knee disability. For these reasons, the Board finds that the preponderance of the evidence weighs against the assignment of increased ratings in excess of 10 percent disabling for a left knee disability and a right knee disability for the entire rating period. In this case, the Board does not find that the ratings assigned should be higher for any other separate period based on the facts found during the appeal period. As a result, no staged rating is warranted. 38 C.F.R. §§ 4.3, 4.7; see Fenderson, 12 Vet. App. at 126; See Hart, 21 Vet. App. at 511. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2012); 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's bilateral knee disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5003, 5010, 5256-5263, specifically provide for disability ratings based on arthritis and limitation of motion that is noncompensable, including limitation of motion due to pain and other limiting factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263; see also DeLuca at 202. In this case, considering the lay and medical evidence, the bilateral knee disability has been manifested by pain, including upon ambulation, and arthritis (diagnosed as degenerative joint disease); these findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations of crepitus, or popping, of the knees, and limitations in ambulation related to limitation of motion. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms while walking and standing, on his occupation and daily life. In the absence of exceptional factors associated with a bilateral knee disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased evaluation (rating) in excess of 10 percent for a right knee disability is denied. An increased evaluation (rating) in excess of 10 percent for a left knee disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs