Citation Nr: 1331733 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-30 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for left knee status post (s/p) lateral release for patella dislocation. 2. Entitlement to service connection for a right knee disorder, to include as secondary to the left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to July 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO granted service connection and assigned an initial noncompensable (0 percent) rating for status post lateral release for patella dislocation of the left knee, claimed as left knee degenerative joint disease (DJD), effective April 11, 2008. The RO also denied service connection for a right knee disorder. In June 2011 the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. In May 2012, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing the additional development, the AMC continued to deny the claims (as reflected in a November 2012 supplemental statement of the case (SSOC)), and returned these matters to the Board. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC). Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. The issue of entitlement to service connection for a right knee disorder, to include as secondary to the left knee disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim decided below has been accomplished. 2. Prior to June 12, 2012, the service-connected left knee disability was manifested by complaints of pain with no objective evidence of limitation of flexion or extension; the evidence does not reflect recurrent subluxation or lateral instability, ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or X-ray evidence of arthritis during this period. 3. Since June 12, 2012, the service-connected left knee disability has been manifested by moderate medial-lateral instability; flexion has been limited to no less than 115 degrees and extension has been limited to no more than 5 degrees and the evidence does not reflect ankylosis, impairment of the tibia and fibula, or X-ray evidence of arthritis. CONCLUSIONS OF LAW 1. Prior to June 12, 2012, the criteria for compensable initial rating for the service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, Diagnostic Codes 5014, 5257, 5260, 5261 (2013). 2. With resolution of all reasonable doubt in the Veteran's favor, since June 12, 2012, the criteria for a rating of 20 percent, but no greater, for the service-connected left knee disability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, Diagnostic Codes 5014, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. The Veteran's claim for service connection for a left knee disability was received in April 2008. He was notified of the general provisions of the VCAA by the RO in correspondence dated later that month. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding the VCAA. Thereafter, the claim was reviewed and the RO issued the July 2008 rating decision granting service connection for status post lateral release for patella dislocation of the left knee. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements apply to all elements of a claim. Notice as to these matters was provided in the April 2008 VCAA letter. The Board notes that the claim for a higher initial rating for the Veteran's service-connected left knee disability is a downstream issue, which was initiated by a notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Hence, there is no duty to provide additional VCAA notice in this case. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records and VA treatment records have been obtained and associated with his claims file and Virtual VA e-folder. The Veteran was also provided with VA examinations to evaluate his left knee disability in July 2008 and June 2012. These examination reports are responsive to the pertinent rating criteria and are, thus, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). During the June 2011 hearing, the Veteran testified that he had received treatment for his knees in 2008 at Jewett Orthopedic Clinic. The only record from this facility associated with the claims file at that time was a January 2006 right knee MRI report. The undersigned held the record open for 60 days following the hearing to allow the Veteran to submit additional treatment records from this provider; however, no additional records were subsequently submitted. In May 2012, the Board remanded the claim for an initial compensable rating for the service-connected left knee disability to obtain outstanding VA and private treatment records and afford the Veteran a new VA examination. It was instructed that the AMC/RO should contact the Veteran and request that he identify all treatment that he received for either or both of his knees after service. All identified treatment records were to be obtained, provided the Veteran provided the appropriate releases. After this remand, VA treatment records dated from October 2010 to June 2012 were associated with the Virtual VA e-folder. The Veteran was afforded a VA examination in June 2012. This examination report is responsive to the May 2012 remand directives regarding the left knee disability, and is adequate to evaluate this disability. In a May 2012 letter, the AMC advised the Veteran that, if he had received medical treatment for his knees after service from any private physicians or hospitals and he wanted VA to obtain his treatment records, he should complete a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for each provider. The Veteran was advised that he could also obtain and send this information himself. The Veteran has not since submitted any private treatment records, nor has he provided a release form to allow VA to obtain them on his behalf. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As the Veteran has not provided a release form for additional private treatment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted. For the foregoing reasons, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has also considered that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned did not specifically discuss the criteria necessary to establish a higher rating for the service-connected left knee disability. However, the Acting Veterans Law Judge and the Veteran's representative did ask questions regarding the severity of this disability. Both the Acting Veterans Law Judge and the Veteran's representative also asked questions seeking to identify any pertinent evidence that was not associated with the claims file. Accordingly, the Veteran is not shown to be prejudiced in regard to any deficiencies in the June 2011 hearing. Moreover, neither the Veteran nor his representative has alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the extensive development of the Veteran's claim discussed above, the Board finds no deficiency in the Board hearing or in development of the claim. See id. The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For reasons which will be discussed below, the Board finds that assignment of staged ratings is appropriate in this case. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran is in receipt of a noncompensable rating for his service-connected left knee disability, pursuant to Diagnostic Code 5014, evaluating osteomalacia. 38 C.F.R. § 4.71a, Diagnostic Code 5014. The rating schedule instructs that the diseases listed in Diagnostic Codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint 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. The 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, Diagnostic Code 5003. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA's General Counsel has held that a veteran who has arthritis and instability in his knees may receive separate ratings under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997). The VA General Counsel subsequently held that separate ratings are only warranted in these types of cases when a veteran has limitation of motion in his knees to at least meet the criteria for a zero-percent rating under Diagnostic Codes 5260 or 5261, or (consistent with DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) and 38 C.F.R. §§ 4.45 and 4.59) where there is probative evidence showing the veteran experiences painful motion attributable to his arthritis. See VAOPGCPREC 9-98 (1998). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Although 38 C.F.R. § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Painful motion is an important factor of disability, and 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 minimum compensable rating for the joint. See 38 CF.R. § 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases where there is arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. See 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (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. Mitchell, 25 Vet. App. at 43, quoting 38 C.F.R. § 4.40. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service treatment records reflect that, in November 1991, the Veteran underwent left knee arthroscopy and lateral release for recurrent lateral subluxation of the left patella following a twisting injury to the left knee. In September 1994 he underwent arthroscopy of the left knee with debridement of scar and fibrotic band tissue for continued left knee pain. On VA examination in July 2008, the Veteran described giving way, instability, pain, stiffness, and weakness affecting both knees. He denied episodes of dislocation, subluxation, or locking. He also denied effusion, inflammation, and flare-ups of joint disease. On examination, gait was normal and there was no evidence of abnormal weight bearing. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees. There was no additional limitation of motion on repetitive use. The examiner noted that there was tenderness of both knees, but there was no instability or patellar or meniscus abnormality. The examiner described July 2008 X-rays of the bilateral knees as "benign." The diagnosis in regard to the left knee was status post lateral release for patella dislocation. The examiner commented that the severity of this condition was mild and the condition had no significant effects on occupational activities, nor did the condition effect daily activities, specifically, chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting, or grooming. During the June 2011 hearing, the Veteran testified that his left knee gave way/buckled, mostly when going down stairs. He described this giving way/buckling as a forward flexion and extension of the joint, as opposed to a side to side motion. The Veteran also reported continued pain and stiffness in the left knee, with increased pain the more he used the knee. He reported that he worked in construction and, because of his knee, he had to "kind of look for the easier access to things." He added that he had to be careful how he picked up his children and could not ride a bike as far as he would like with his daughter. The Veteran stated that he wore a left knee brace "probably three or four times a month" although he wore it more lately because he was coaching. He reported that he sometimes had left knee pain with range of motion and he did feel some pain when the knee was completely straight. He added that he also felt pain after "an eventful day of walking." VA treatment records dated from October 2010 to June 2012 reflect complaints regarding and treatment for knee pain. In November 2010, the Veteran presented to establish care with VA. He complained of right knee pain and locking. On examination, all joints had full range of motion. Despite the complaints of right knee pain, the pertinent assessment was left knee pain. An X-ray was ordered. The November 2010 X-ray report, which refers to both the right and left knee, revealed no degenerative arthritis of the left knee. In September 2011, the Veteran reported bilateral knee pain level four out of ten, worse with prolonged activity. He denied swelling or locking. The pertinent assessment was left knee pain, osteoarthritis. The Veteran underwent another VA examination in June 2012. The examiner noted that the Veteran had left patella subluxation, status post debridement and release, diagnosed in 1991. The Veteran denied flare-ups impacting the function of the knee and/or lower leg. Range of motion testing of the left knee revealed left knee flexion to 115 degrees with no objective evidence of painful motion. Left knee extension was limited to 5 degrees, also with no objective evidence of painful motion. After repetitive use testing, left knee flexion and extension were, again to 115 and 5 degrees, respectively. The examiner indicated by marked box that the Veteran had additional limitation in range of motion of the knee and lower leg following repetitive use testing; however, this appears to be in reference to the right knee, which did demonstrate decreased flexion after repetitive use testing. The examiner indicated by marked box that the Veteran had less movement than normal, weakened movement, and excess fatigability affecting both knees after repetitive use testing. Examination also revealed tenderness or pain to palpation of the joint line or soft tissues of both knees. Muscle strength testing revealed normal strength in both flexion and extension, bilaterally. In regard to joint stability tests, anterior and posterior instability tests were normal, bilaterally. However, the medial-lateral instability test was 2+ (5-10 millimeters) on the left. The examiner commented that there was no evidence or history of recurrent patellar subluxation/dislocation. The examiner also indicated by marked box that the Veteran had had a meniscal condition or surgical procedures for a meniscal condition, but did not have, nor had he ever had, a meniscus (semilunar cartilage condition). He reported that the Veteran had had a meniscectomy, specifically, his 1991 left knee lateral release and debridement. The examiner indicated by marked box that the Veteran did not have any residual signs and/or symptoms due to a meniscectomy. The examiner further indicated that, while the Veteran also underwent repeat left knee surgery in 1994, he had no residual signs and/or symptoms due to this surgery not otherwise described in the examination report. The examiner indicated that, while the Veteran did have knee scars, these were not painful or unstable, nor was the total area of all related scars greater than 39 square centimeters (6 square inches). He also noted that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the diagnosed knee disorders. X-ray of the left knee revealed no acute abnormality, with minimal osteophyte formation about the patella. The examiner indicated that degenerative or traumatic arthritis was not documented by the imaging study, nor was there X-ray evidence of patellar subluxation. The examiner indicated by marked box that the Veteran's knee conditions impacted his ability to work, commenting that the condition would impact a moderately physical job. He noted that the Veteran had difficulty traversing uneven terrain and climbing stairs in his current job as a contractor, so he avoided these activities. The examiner stated that a job running for a sustained period would be problematic, but that the condition would not impact a sedentary job. Considering the pertinent evidence of record in light of the law, the Board finds that an initial compensable rating for the service-connected left knee disability is not warranted prior to June 12, 2012, but that, resolving all reasonable doubt in favor of the Veteran, a 20 percent rating is warranted from June 12, 2012. Prior to June 12, 2012 The evidence prior to June 12, 2012 does not indicate any limitation of flexion or extension of the left knee. Rather, range of motion was full from 0 to 140 degrees on VA examination in July 2008 and was again full during VA treatment in November 2010. Accordingly, an initial compensable rating based on limitation of flexion or extension during this period is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board has considered the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 during the period prior to June 12, 2012. In this regard, the Veteran complained of pain, stiffness, and weakness during the July 2008 VA examination; described pain and stiffness, including increased pain with use, during the June 2011 hearing, and VA treatment records during this period document complaints of knee pain. However, as discussed above, pain itself does not rise to the level of functional loss. See Mitchell, 25 Vet. App. at 38. Even considering pain and weakness, there is no indication that functional impairment resulted in limitation of motion as required for a compensable rating during this period; rather, the July 2008 VA examiner commented that there was no additional limitation of motion on repetitive use and described the severity of the Veteran's left knee disability as mild, with no significant effects on occupational activities and no effects on numerous daily activities. Although the Veteran initially filed a claim for service connection for left knee DJD, and the September 2011 VA treatment record includes an assessment of left knee pain, osteoarthritis, a compensable evaluation for arthritis requires X-ray evidence of that condition. 38 C.F.R. § 4.71a, Diagnostic Code 5003. X-rays obtained in conjunction with the July 2008 VA examination were described as "benign" and the November 2010 X-ray report indicates no degenerative arthritis of the left knee. Accordingly, in the absence of radiological evidence of arthritis in the left knee, there is no basis for assignment of a compensable rating pursuant to Diagnostic Code 5003. The Board has considered the Veteran's reports of his left knee being unstable, buckling, and giving way; however, the competent medical evidence reflects that his left knee disability was not manifested by recurrent subluxation or lateral instability during this period. Notably, although the Veteran reported giving way and instability during the July 2008 VA examination, he denied episodes of dislocation or subluxation and no instability was found on examination. During the June 2011 hearing, the Veteran described his knee giving way/buckling as a forward flexion and extension of the joint, as opposed to a side to side motion. In light of the foregoing, a compensable rating pursuant to Diagnostic Code 5257 is not warranted. The Board has also carefully considered whether a compensable rating is warranted pursuant to Diagnostic Code 5259, which provides a 10 percent rating for symptomatic removal of semilunar cartilage. The Veteran did undergo two knee surgeries in service, and he did experience left knee symptoms during the period prior to June 12, 2012; however, the evidence does not indicate that his surgical procedures involved removal of semilunar cartilage. Semilunar cartilage is defined externally as the meniscus lateralis articulationis genus (lateral meniscus) and internally as the meniscus medialis articulationis genus (medial meniscus). See Dorland's Illustrated Medical Dictionary 273, 1013 (28th ed. 1994). The November 1991 operation report, regarding the Veteran's arthroscopy and lateral release, specifically notes that, "The medial and lateral menisci were inspected and found to be perfectly normal." The September 1994 discharge summary notes that the Veteran underwent arthroscopy of the left knee with debridement of scar and fibrotic band tissue. There is no mention of removal of semilunar cartilage regarding either of these surgeries. The Board has considered that the June 2012 VA examiner indicated by marked box that the Veteran had had "any meniscal conditions or surgical procedures for a meniscal condition." Confusingly, he then proceeded to mark "No" in response to the question, "Does the Veteran now have or has he or she ever had a meniscus (semilunar cartilage) condition?" The examiner marked "Yes" in response to the question, "Has the Veteran had a meniscectomy?" The examiner reported that the Veteran had undergone lateral release and debridement of the left knee in 1991. To the extent that the June 2012 VA examiner's responses suggest that the Veteran underwent a meniscectomy during service, the Board finds more probative the contemporaneous service treatment records, including the November 1991 operative report which specifically describes the menisci as normal and makes no mention of removal of semilunar cartilage. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than subsequently reported history). Moreover, despite reporting that the Veteran underwent meniscectomy during service, the June 2012 VA examiner indicated that he did not have any residual signs and/or symptoms due to a meniscectomy. As the weight of the evidence indicates that the Veteran did not undergo removal of semilunar cartilage, assignment of a compensable rating pursuant to Diagnostic Code 5259 is not warranted. Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a compensable rating for the left knee disability prior to June 12, 2012. As it is neither contended nor shown that the left knee disability involves ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, rating under the diagnostic codes evaluating these disabilities is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262, 5263. Since June 12, 2012 On VA examination on June 12, 2012, the examiner reported that the Veteran had medial-lateral in stability in the left knee which was "2+ (5-10 millimeters)." The examiner did not characterize the left knee instability as "slight," "moderate," or "severe." However, the examination worksheet allowed the examiner to describe the results of testing for medial-lateral instability as "Normal," "1+ (0-5 millimeters)," "2+ (5-10 milimeters)," or "3+ (10-15 millimeters)." Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that these findings correspond with a finding of moderate lateral instability. Therefore, a 20 percent rating is warranted, effective from the date of this VA examination. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A rating in excess of 20 percent is not warranted during the period since June 12, 2012. Left knee range of motion was from 5 to 115 degrees on VA examination in June 2012. Such range of motion does not warrant assignment of even a compensable rating for the left knee disability under Diagnostic Code 5260 or Diagnostic Code 5261. The evidence also provides no basis for assignment of separate ratings for limited flexion and extension. See VAOPGCPREC 9-2004 (2004). The Board has considered the Veteran's functional impairment due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45 during the period since June 12, 2012. However, there was no objective evidence of painful motion on range of motion testing during the June 2012 VA examination. Despite the fact that the VA examiner indicated by marked box that the Veteran had less movement than normal, weakened movement, and excess fatigability affecting both knees after repetitive use testing, he nevertheless continued to demonstrate flexion to 115 degrees and extension to 5 degrees. Even considering less movement than normal, weakness, and fatigability, there is no indication that functional impairment resulted in limitation of motion as required for a higher rating based on limitation of flexion or extension during this period. Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a rating in excess of 20 percent for the left knee disability since June 12, 2012. As it is neither contended nor shown that the left knee disability involves ankylosis or impairment of the tibia and fibula, rating under the diagnostic codes evaluating these disabilities is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262. Both Periods In light of the June 2012 VA examiner's note that the Veteran had scars related to his knee conditions, the Board has also considered whether he is entitled to a separate evaluation for surgical scars related to his service-connected left knee disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). During the pendency of this appeal, VA revised the criteria for diagnosing and evaluating the skin, effective October 23, 2008. See 73 Fed. Reg. 54708-12 (Sept. 23, 2008). With regard to the revision made to the skin regulations effective October 23, 2008, the revised criteria apply to all applications for benefits received by VA on or after that date. As the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in this case. The Veteran's knee scarring has not been described as painful, and has not been found to be unstable, exceed 144 square inches, or to be deep or cause limited motion and exceed 6 square inches. Rather, the June 2012 VA examiner specifically indicated that none of the scarring was painful and/or unstable, and the total area of all related scars was not greater than 6 square inches. A separate compensable evaluation for scarring is, therefore, not warranted. 38 C.F.R. § 4.118 (effective prior to October 23, 2008). The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. The Veteran's left knee disability has not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria are adequate to rate the service-connected left knee disability. The rating schedule contemplates the symptomatology of limited motion and instability and allows for higher disability ratings for worse symptoms. Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disability. The symptoms of the Veteran's service-connected left knee are adequately compensated in the disability ratings assigned. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran's complaints of stiffness, weakness, and fatigability are not specifically set forth in the rating criteria in 38 C.F.R. § 4.71a, functional loss due to more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse are accounted for in 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca, 8 Vet. App. at 206. However, as discussed above, higher ratings based on additional functional loss related to such factors is not warranted in this case. Therefore, the Veteran's symptoms are adequately described in the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). Further, the evidence also does not indicate that the Veteran's left knee disability, alone, has resulted in marked interference with employment above and beyond that considered by the assigned disability ratings or that there have been frequent periods of hospitalization. Rather, the record reflects that the Veteran has remained employed during the pendency of the appeal and there is no indication of periods of hospitalization, let alone on a frequent basis, since the effective date of the grant of service connection. In light of the foregoing, referral for consideration of an extra-schedular rating is not warranted. For the reasons discussed above, the Board has resolved reasonable doubt the Veteran's favor in determining that a 20 percent rating is warranted for the service-connected left knee disability, effective June 12, 2012, but finds that the preponderance of the evidence is against assignment of a compensable rating prior to June 12, 2012, or a rating in excess of 20 percent since that date. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial compensable rating for left knee status post (s/p) lateral release for patella dislocation, prior to June 12, 2012, is denied. Effective June 12, 2012, a 20 percent rating is granted for left knee status post (s/p) lateral release for patella dislocation, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran asserts that he has a right knee disability related to his service-connected left knee disability. In the May 2012 remand, the Board instructed that he be provided a VA examination to evaluate this claimed disability. The examiner was instructed to indicate whether it is at least as likely as not that the Veteran's right knee problems were caused or aggravated by his left knee disability. Unfortunately, the June 2012 VA examiner addressed whether the Veteran had a right knee disability which was caused by his service-connected left knee disability, but did not address whether the Veteran had a right knee disability that was aggravated by his service-connected left knee disability. Accordingly, a supplemental medical opinion should be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The most recent VA treatment records currently associated with the claims file/e-folder are dated in June 2012. On remand, any more recent VA treatment records should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Finally, because the claim is being remanded for other development, the Veteran should be afforded another opportunity to submit a release to allow VA to obtain treatment records from Jewett Orthopedic Clinic on his behalf. See 38 C.F.R. § 3.159(c)(1) (2013). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right knee disorder. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from the Orlando VA Medical Center (VAMC) (to include the Daytona Beach outpatient clinic (OPC)), dated since June 2012, and from Jewett Orthopedic Clinic. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the examiner that conducted the June 2012 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder was aggravated by his service-connected left knee disability. He should provide a complete rationale for all opinions expressed. If further examination of the Veteran is deemed necessary, arrange for the appellant to undergo VA examination to obtain the above-noted opinion. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: * A January 2006 MRI of the right knee reveals a chronic partial tear of the posterior cruciate ligament, a chronic partial tear of the anterior cruciate ligament, trace knee joint effusion, and mild intrasubstance degeneration of the posterior horn of the medial meniscus, but no focal tear violating the articular surface. * VA treatment records dated from October 2010 to June 2012 reflect complaints regarding right knee pain and locking. * During the June 2011 hearing, the Veteran testified that his right knee condition was brought about as a result of his left knee disability. He reported that his right knee first started giving him problems around 2007 or 2008, but then clarified that, over the years, he had experienced gradual right knee pain and swelling, but it got to the point where he felt he needed treatment in 2007 or 2008. The Veteran testified that he had not had any traumatic injuries to his right knee. He asserted that he felt the cause of the right knee disorder was favoring his left knee for 15 years, and his doctor felt the same way. * On VA examination in June 2012, the examiner noted that the Veteran had old disruption of the anterior cruciate and posterior cruciate ligaments of the right knee, with a date of diagnosis in January 2006. The Veteran reported that he favored his left knee by bearing increased weight on the right. 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran and his representative should be provided an SSOC. An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs