Citation Nr: 1331756 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 03-11 744A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent, other than during a period of temporary total disability from January 16, 1998, to March 1, 1998, for service-connected chronic synovitis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to December 1989. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which assigned a temporary total rating from January 16, 1998, to March 1, 1998, based on the Veteran's need for convalescence following right knee surgery, and continued the previously-assigned 10 percent rating effective March 1, 1998. The Veteran perfected an appeal of the December 1998 rating decision and in May 2007, presented testimony at a personal hearing before the undersigned. A transcript of the Board hearing is of record. The Board remanded the claim in April 2008 and December 2010 for additional development. In a July 13, 2012, decision, the claim was adjudicated. In pertinent part, the Board denied a rating in excess of 10 percent for chronic synovitis of the right knee, granted a separate 10 percent evaluation for right knee instability, and remanded a claim for entitlement to a total disability rating based on unemployability (TDIU). The Veteran appealed that portion of the Board's July 13, 2012, decision that denied a rating in excess of 10 percent for chronic synovitis of the right knee to the United States Court of Appeals for Veterans Claims (Court). He did not appeal the separate rating assigned by the Board for right knee instability. In an April 2013 Order, the Court granted a Joint Motion for Partial Remand and remanded the matter to the Board for further development and readjudication. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The Board notes that the TDIU claim remanded in July 2012 remains pending before the agency of original jurisdiction and is not presently before the Board for appellate review. FINDINGS OF FACT The Veteran's right knee is not manifested by flexion limited to 30 degrees or extension limited to 15 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for chronic synovitis of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5020, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran's claim was initially adjudicated before VA's duties to notify and assist were codified at 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159 (2012). He was not provided the notice required until April 2001. The notice required by Dingess was not provided to the Veteran until March 2006. Although this notice was sent long after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim in supplemental statements of the case dated May 2010 and March 2013. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new notification followed by a readjudication of the claim). VA has obtained service treatment records; assisted the appellant in obtaining evidence, to include records from the Social Security Administration (SSA); afforded the appellant physical examinations; obtained medical opinions as to the severity of his disability; and afforded the appellant the opportunity to give testimony. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. See Overton, 20 Vet. App. at 437. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. When evaluating disabilities of the musculoskeletal system, an evaluation of the extent of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Service connection was originally awarded for chronic synovitis of the right knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 5020, with a noncompensable evaluation effective December 2, 1989. See April 1990 rating decision. The Veteran appealed the initial rating. The rating was increased to 10 percent, effective June 1, 1992, during the appellate process. See June 1992 rating decision. In January 1996, the Board ultimately determined that the effective date of the 10 percent rating should go back to December 2, 1989. The January 1996 Board decision was effectuated in a February 1996 rating decision. The Veteran's claim for increased rating was received in January 1997. In the December 1998 rating decision that is the subject of the current appeal, the RO assigned a temporary total rating from January 16, 1998, to March 1, 1998, based on the Veteran's need for convalescence following right knee surgery. The 10 percent rating was continued effective March 1, 1998. The Veteran perfected an appeal of the December 1998 rating decision. As noted in the Introduction, the Board decided his appeal on July 13, 2012. In pertinent part, the Board denied a rating in excess of 10 percent for chronic synovitis of the right knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 and 5261, but granted a separate 10 percent evaluation for right knee instability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran appealed that portion of the Board's July 13, 2012, decision that denied a rating in excess of 10 percent for chronic synovitis of the right knee to the Court. He did not appeal the separate rating assigned by the Board for right knee instability. In an April 2013 Order, the Court granted a Joint Motion for Partial Remand and remanded the matter to the Board for further development and readjudication. The Joint Motion determined that partial vacatur of the Board's July 13, 2012, decision was warranted because the Board failed to provide an adequate statement of reasons or bases for its determination that an increased evaluation or a separate evaluation is not warranted for meniscal disability and/or meniscectomy residuals associated with the Veteran's right knee disability under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and/or 5259. The Joint Motion also determined that the Board failed to provide an adequate discussion of the applicability of the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Joint Motion made clear that the Board's decision with regard to its grant of a separate 10 percent rating for instability of the right knee should not be vacated. Given the findings in the Joint Motion, the Board will readjudicate the issue of whether the Veteran is entitled to a disability rating in excess of 10 percent, other than during a period of temporary total disability from January 16, 1998, to March 1, 1998, for service-connected chronic synovitis of the right knee. The Veteran contends that he is entitled to a rating in excess of 10 percent for chronic synovitis of the right knee because he has had two surgeries on that knee and his doctors tell him they need to be scoped every three to six years until they can be replaced, at which point he will no longer be able to walk. See May 2001 statement in support of claim. He also reports that it takes some time for his right knee to fully heal after surgery. See May 2003 VA Form 9. The Veteran testified that when sitting, he has to "squeeze the knee cap in and unlock it 'cause it locks." He also reported constant grinding and severe pain in the right knee. The Veteran indicated that squatting and bending were difficult because of locking and that he needed help getting up from these positions, that it was difficult to get up from a sitting position, and that his knee begins to ache after walking. See May 2007 hearing transcript. Diagnostic Code 5020 provides that synovitis is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint(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 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of either leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings of 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II (2012). Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The medical evidence in this case consists of VA treatment records, records from the SSA, and several VA examinations. An August 1996 VA Form 10-10M reveals that the Veteran reported that it felt like his right knee was locking and that he had shooting pain in his right knee, mainly when sitting. He also complained of "popping" and having to extend his knee joint before standing. Physical examination revealed no laxity and ligaments were intact. McMurray maneuver was normal. The diagnostic impression was degenerative joint disease. Motrin was prescribed for one week. An August 1996 x-ray revealed no right knee bone or joint abnormality was present. The Veteran was seen in October 1996, at which time he reported continued soreness, popping sensation and locking. He denied any recent injury. See VA progress note. An October 1996 magnetic resonance imaging (MRI) of the right knee showed normal homogenous marrow signal of the bony structures; normal appearance of the cruciate and collateral ligaments; a moderate amount of fluid collection in the lateral suprapatellar region; and no gross evidence of a meniscal tear demonstrated. The impression was no evidence of a meniscal or ligamentous tear; and moderate amount of effusion in the suprapatellar region. See imaging report. A subsequent October 1996 VA progress note indicates that the Veteran returned for the results of his MRI and that he still had residual soreness and occasional locking. The assessment was right knee arthralgia/synovitis. The Veteran was seen in kinesiology in December 1996 with complaint of right knee pain. He ambulated without assistive device. Muscle testing revealed right lower extremity quadriceps at 7 1/2 and hamstrings at 7. The Veteran was instructed in home program and issued a cane for ambulation and therabands. See consultation sheet. A January 1997 kinesiology follow up note reveals that the Veteran continued to complain of pain. Muscle testing revealed right lower extremity quadriceps and hamstrings both at 10. It was noted that he exhibited slight increase in strength and continuation of the home program was recommended. Further follow up did not appear indicated. The Veteran underwent a VA joints examination in September 1997, at which time he reported knee pain and that his right knee locked and popped when sitting, climbing, or squatting. The Veteran indicated that he had to "push on the side of his knee caps" to release them. The Veteran reported shooting, burning pain under his knee cap and that his knee felt "mushy when you push on it." The Veteran complained of swelling only rarely, and the examiner observed suprapatellar fluid around the right knee. The examiner observed no deformity of the knee. There was no evidence of subluxation, no lateral instability, and no loose motion. The examiner observed mild crepitance in both knees. The Veteran wore a soft knee brace and walked with a cane. The Veteran displayed marked difficulty when rising from a seated position. Upon range of motion testing, the right knee had flexion to 110 degrees and extension to 5 degrees. The range of motion testing results took into consideration pain, fatigue, weakness, incoordination, and pain on repetition. The examiner noted that the Veteran had flare-ups of pain about once weekly, which resulted in an additional loss of motion of 10 to 15 degrees. The examiner reported that a September 1997 right knee x-ray showed minimal sclerotic and concave appearance of the medial tibial plateau with well-preserved joint spaces. The October 1996 MRI was reported and the examiner also reported that a September 1997 MRI of the right knee showed absence of the lateral meniscus with increased signal, but no actual tear. The diagnosis was chronic right knee strain, certainly consistent with a diagnosis of synovitis. The x-ray and MRI reports discussed by the examiner are of record. As noted above, the Veteran underwent surgery to repair a torn right meniscus on January 16, 1998, after which he received a temporary total disability evaluation until March 1, 1998. Prior to his surgery, the Veteran was seen in January 1998 with complaint of pain, instability and crepitus of the right knee. It was noted that he wore a knee brace and ambulated with a cane. A January 1998 x-ray of the right knee taken prior to the surgery revealed slight spurring of the lateral tibial spine but the knee was otherwise unrevealing and the subarticular bony margins appeared normal. The Veteran underwent another VA joints examination in April 1998, at which time his claims folder was reviewed. He reported locking and popping with constant shooting pain under the kneecap and down the sides of the knee. The Veteran indicated that he was unable to run, but he could walk for up to 30 minutes and climb 3 to 5 steps before experiencing severe knee pain. The Veteran experienced significant knee pain when bending down or getting up and he could not kneel. He denied flares of discomfort except as related to exertion. Sensory examination of the right knee was intact to light touch. Motor examination was normal. The Veteran had a normal posterior tibial pulse but there was no definite dorsalis pedis pulse. The right knee did not have definite effusion. The right knee was mechanically stable without deformity. Upon repetitive range of motion testing, the right knee had flexion to 60 degrees, with an additional 28 degrees of flexion possible with discomfort. The examiner reported that January 1998 x-ray of the right knee showed "no significant finding aside from minimal degenerative spurring of lateral tibial spine." The diagnoses were chronic right knee strain, consistent with chronic synovitis, and right knee status-post arthroscopy times two. In May 1998, the Veteran indicated that his right knee had progressively improved and that he was doing rehabilitation and strength exercises every day. He did not need any pain medications for his right knee. Examination revealed right knee range of motion from 0 to 120 degrees with 1+ medial laxity (noted to be improved from the last examination). There was no effusion, the Veteran was neurovascularly intact, and his quadriceps was noted to be much stronger. See surgery orthopedic note. The Veteran was seen in February 1999 with complaint of right knee pain with cracking sensation. Physical examination of his extremities revealed they were free of edema and had good peripheral pulses. The assessment was right knee pain. See medicine outpatient note. Another VA joints examination was conducted in October 2000, at which time the Veteran reported daily right knee pain with stiffness, snapping and popping. He reported taking Motrin and Tylenol twice a day with poor response. The Veteran indicated that he had flare-ups of pain every few days for several hours with a pain intensity of nine on a scale from one to ten. Such flare-ups were precipitated by sitting too long or walking too far and were alleviated by getting off of his feet, taking his medication, and using ice. The Veteran did not use crutches or a brace, but he did use a cane. The Veteran indicated that he could not engage in sports, lift weights, or run, and he indicated that he had a limited ability to kneel and bend and that he had trouble sitting and standing for prolonged periods of time. Range of motion testing, which considered pain, fatigue, weakness and incoordination, revealed some popping with flexion and extension. Flexion was to 95 degrees and extension was to 5 degrees, both with pain. The diagnosis was right knee strain with slight decreased range of motion. The examiner noted that right knee x-ray in February 2000 showed questionable superior elevation of the patella. The imaging report is of record. The Veteran complained of flare of bilateral knee pain in February 2001. See SOAP note. He was seen in August 2001 due to post-surgical problems. His right knee was tender. The plan was to obtain x-rays. See rheumatology consult note. An August 2001 x-ray revealed that bones and soft tissues were within normal limits. A November 2001 orthopedic consult note reveals that the Veteran reported chronic patellofemoral pain in the right knee for some time and painful clicking. Physical examination revealed light crepitus in the right patellofemoral joint with no evidence of effusion. The collateral and cruciate ligaments and meniscus were intact. The Veteran had difficulty crouching and could not attempt kneeling. The examiner noted that x-ray of the right knee showed no abnormality except for a very slight spur on the lateral aspect of the right patella seen on the tangential view. The diagnosis was right knee chondromalacia of the patellofemoral joint. The Veteran underwent another VA examination in December 2001, at which time his claims folder was reviewed. He reported that since his right knee arthroscopy, he had pain at a level eight on a scale of ten with weakness, locking, popping, occasional swelling, and stiffness. The Veteran denied redness. The examiner noted that the Veteran had some fatigability, but no lack of endurance. The Veteran denied any flare-ups, stating instead that his knee pain was "terrible all the time." The Veteran walked with a cane. Physical examination revealed no gross deformity of the right knee and no lateral or medial instability, and no swelling or erythema. Range of motion testing, with consideration of pain, fatigue, weakness, lack of endurance, incoordination, and alteration by repetition, revealed right knee flexion to 130 degrees and extension to 0 degrees. A December 2001 x-ray revealed that bones and soft tissues were within normal limits. The Veteran was seen in August 2004 with complaint of constant shooting pain in the knee, pain in the lateral meniscus region, which had been of a few months' duration, and knee locking after sitting. Physical examination of the right knee revealed full range of motion, clicking, a positive McMurray's sign, and no laxity. The assessment was possible meniscal tear. An August 2004 x-ray of the bilateral knees demonstrated no definite intensity bony lesion. The articular surfaces appeared smooth and on the lateral views, there was suggestion of upward shift of both patellae, more prominently of the left knee which could be compatible with shortening of the quadriceps tendons. There was also slight lateral shift of both patellae on the tangential views. The impression was probable mild bilateral patellar subluxations; associated shortening of quadriceps tendons, especially of the left knee, should be considered; and no intrinsic bony lesions noted. See primary care office visit note and imaging report. A private examination report from December 2005, which was obtained from SSA, indicated that the Veteran had full range of motion of the knees with no evident subluxations, contractures, ankylosis, or thickening. The joints were stable and non-tender, and no redness, heat, swelling, or effusion was noted. No trigger points were evident. A September 2006 VA nursing intake note reveals that the Veteran was seen with complaint of chronic knee pain, which was described as aching, dull and short. Aggravating symptoms included walking, standing and sitting. Physical examination revealed that the Veteran walked with a cane and had a stiff gait. A June 2009 VA nursing progress note reveals that the Veteran was seen with complaint of chronic bilateral knee pain, worse on the right. The pain was described as aching, burning, sharp and stabbing. Aggravating symptoms were walking too much or standing too long. Aleve was noted to be an alleviating factor. A June 2009 x-ray of the bilateral knees revealed normal appearance of the medial and lateral joint spaces. The patellofemoral joint space appeared normal and there was no joint effusion or loose joint bodies. Minimal bony spurring of the distal femur, proximal tibia and patella on the right was noted. There was no articular cartilage calcification. The impression was minimal degenerative changes; joint spaces appear normal. The Veteran was seen in July 2009 for an orthopedics consult. The examiner indicated reviewing his MRI and finding nothing operative in the right knee. It was also noted that the Veteran had been previously arthroscoped without good result or any change in his symptoms. The examiner indicated that the Veteran should see if he is primary for the possibility of nonsteroidal anti-inflammatories as he did have low-grade chondromalacia, but there was a disc proportion between his symptoms and the findings on MRI. Another VA joints examination was conducted in May 2010. The Veteran reported chronic pain and mechanical symptoms in his right knee. He also reported problems with squatting and kneeling. Physical examination revealed that the Veteran was able to walk with a normal stride length and no limp. There was no detectable effusion in the right knee, but there was mild tenderness about the lateral patellar facet. Range of motion testing revealed flexion to 120 degrees. The examiner noted crepitus and subtle subluxation of the patella into the trochlear groove. There was also mild tenderness over the patellar tendon. There was no instability with varus or valgus stress in extension or flexion and the Veteran had a negative Lachman test. The examiner noted that the June 2009 x-ray showed the knee was well aligned without significant joint space narrowing. The tangential view indicated that the patella is in the trochlear groove. The impression was mild patellofemoral subluxation when the patella is traversing from flexion into extension consistent with mild patellofemoral arthritis and instability. A February 2011 right knee MRI contained findings of minimal post-operative fibrosis of the anteromedial soft tissues as well as infrapatellar fat pad. The anterior and posterior cruciate ligaments and medial meniscus were intact. The anterior horn and body of the lateral meniscus demonstrated attenuation and increased signal intensity which may be post-operative from previous partial meniscectomy. There was no definite evidence for recurrent or residual tear. The medial and fibular collateral ligaments were intact. The quadriceps, patellar, and poplitus tendons were intact. There was an intermediate signal within the distal quadriceps and proximal patellar tendons suggestive of tendinopathy, and there was a small joint effusion. There was no patellar subluxation and no patellar retinacular tear. There was a small Baker's cyst noted, but no fracture or destructive bone lesion. There was no soft tissue mass. Mild tricompartmental degenerative joint disease was noted. The Board has considered the Veteran's statements regarding his right knee disability and finds that they are competent and credible. The preponderance of the evidence, however, is against the assignment of a rating in excess of 10 percent for chronic synovitis of the right knee under Diagnostic Code 5020 (which is rated under Diagnostic Code 5003). This is so because the Veteran's right knee did not exhibit flexion limited to 30 degrees or extension limited to 15 degrees so as to support the assignment of the next highest (20 percent) rating under either Diagnostic Code 5260 or Diagnostic Code 5261. Rather, at worst, his right knee flexion was limited to 60 degrees and extension was limited to 5 degrees, to include after repetitive motion. See VA examination reports dated September 1997, April 1998, October 2000, December 2001 and May 2010; see also May 1998 surgery orthopedic note. Since the Veteran's right knee has never exhibited a compensable level of either limitation of flexion or extension, separate ratings are not warranted. See VAOPGCPREC 09-2004 (September 17, 2004). As required by the Joint Motion, the Board will provide specific discussion as to whether a separate or increased rating is warranted under either Diagnostic Code 5258 or Diagnostic Code 5259. Diagnostic Code 5258 provides a sole 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides a sole 10 percent rating for symptomatic removal of the semilunar cartilage. The Board acknowledges the Veteran's complaints of right knee locking prior to his January 16, 1998, surgery. See VA treatment records dated August 1996 and October 1996; see also September 1997 VA examination report. The Board also acknowledges that these complaints of locking were accompanied by complaints of pain or soreness. Importantly, however, an October 1996 MRI of the right knee showed normal appearance of the cruciate and collateral ligaments and no gross evidence of a meniscal tear was demonstrated. While the October 1996 MRI did show a moderate amount of fluid collection in the lateral suprapatellar region, and this effusion was accompanied by complaints of pain and episodes of locking, Diagnostic Code 5258 stipulates that there must also be dislocated semilunar cartilage. No such dislocation was noted in the October 1996 MRI. Rather, as stated above, that MRI showed normal appearance of the cruciate and collateral ligaments and no gross evidence of a meniscal tear. The Board also acknowledges the Veteran's post-surgical complaints of locking made at the time of the April 1998 and December 2001 VA examinations, in an August 2004 VA treatment record, and at the time of his May 2007 Board hearing. It again acknowledges that these complaints of locking were accompanied by complaints of pain. See VA examination reports dated April 1998 and December 2001; see also August 2004 primary care office visit note. Lastly, it acknowledges that at the time of the August 2004 VA treatment record, a possible meniscus tear was suspected. The April 1998 and December 2001 VA examiners, however, specifically noted the absence of any right knee joint effusion or swelling. Moreover, while a September 1997 MRI of the right knee showed absence of the lateral meniscus with increased signal, there was no actual tear. A more recent MRI in February 2011 confirms the absence of definite evidence for recurrent or residual tear. The October 1996, September 1997 and February 2011 MRI reports are devoid of evidence of dislocated semilunar cartilage. In the absence of such evidence, Diagnostic Code 5258 is not for application in this case, despite the subjective complaints of pain and locking accompanied by objective evidence of effusion. As for Diagnostic Code 5259, the Board notes that there is x-ray evidence dated subsequent to the Veteran's January 16, 1998, surgery of degenerative changes (arthritis) in his right knee. See January 1998 x-ray (slight spurring of the lateral tibial spine); June 2009 x-ray (minimal bony spurring of the distal femur, proximal tibia and patella on the right). The April 1998 VA examiner indicated that the January 1998 x-ray evidence of spurring was degenerative. The Board finds that the Veteran's current 10 percent rating assigned for chronic synovitis of the right knee pursuant to Diagnostic Code 5020 is appropriate given these degenerative changes. To assign a separate 10 percent rating under Diagnostic Code 5259 in addition to the already-assigned 10 percent rating under Diagnostic Code 5020 would violate the rule against pyramiding. See 38 C.F.R. § 4.14. This is so because the symptoms contemplated under Diagnostic Code 5259 are not separate and distinct from other criteria related to the knees, more specifically in this case, to Diagnostic Codes 5260 and/or 5261. In addition, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5259 because no rating in excess of 10 percent exists under this diagnostic criterion. Also required by the Joint Motion, the Board will provide better analysis as to the applicability of the provision of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Joint Motion indicated that the Board did not address whether the Veteran's additional loss of motion of 10 to 15 degrees during flare ups noted at the time of the September 1997 VA examination would warrant a compensable rating with regard to right knee extension. The Board acknowledges the September 1997 VA examiner's report. While a loss of an additional 15 degrees from the 5 degrees of extension reported during range of motion testing would equate to a loss of 20 degrees of extension, which would meet the criteria for a 30 percent rating under Diagnostic Code 5261, these flare ups, as reported by the Veteran, only occurred one time a week. Given their infrequency, combined with the absence of evidence of pain, fatigue, weakness, and/or incoordination during range of motion testing, the Board does not find that the assignment of a 30 percent rating is warranted under Diagnostic Code 5261. Moreover, subsequent examination reports do not document limitation of extension to 30 degrees. Rather, at the time of the October 2000 and December 2001 VA examinations, the Veteran was able to extend to five degrees. Although pain was noted in October 2000, it was not noted in December 2001. Even if range of motion was limited by pain beyond that shown during the October 2000 examination, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (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. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. More specifically, there was no evidence of fatigue, weakness, lack of endurance, incoordination, and/or alteration by repetition at the time of the subsequent, December 2001, VA examination. As for consideration of 38 C.F.R. §§ 4.40, 4.45 and 4.59 in conjunction with limitation of flexion, the Board acknowledges the subjective complaints of pain made throughout the course of the Veteran's appeal, as well as the objective evidence of pain and popping during flexion at the time of the October 2000 VA examination and the objective evidence of crepitus and subtle subluxation of the patella into the trochlear groove at the time of the May 2010 VA examination. The Board also acknowledges that the September 1997 VA examiner noted that the Veteran had flare-ups of pain about once weekly, which resulted in an additional loss of motion of 10 to 15 degrees, and that the Veteran was only able to flex to 60 degrees with repetitive range of motion testing at the time of the April 1998 VA examination. The December 2001 VA examiner, however, took into consideration pain, fatigue, weakness, lack of endurance, incoordination, and alteration by repetition and reported that the Veteran achieved flexion to 130 degrees. Moreover, even taking into consideration a loss of 15 degrees of flexion one time per week, as reported by the September 1997 VA examiner, and the limitation of flexion to 60 degrees noted in April 1998, the Veteran still has not exhibited compensable limitation of flexion under Diagnostic Code 5260. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected chronic synovitis of the right knee is not warranted on the basis of functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2012); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). The Board has considered the remaining diagnostic codes related to the knees to determine whether an increased rating is warranted for the right knee under these provisions. None, however, are for application in this case as there is no evidence of ankylosis in the Veteran's right knee (Diagnostic Code 5256); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263). The separate 10 percent rating assigned by the Board pursuant to Diagnostic Code 5257 in its July 13, 2012, decision was not appealed. Since that portion of the Board's July 13, 2012, decision was not vacated, a separate discussion is not warranted at this time. Consideration has been given to assigning a staged rating; however, at no time during the period in question (other than between January 16, 1998, and March 1, 1998, when a temporary 100 percent rating was in effect) has the right knee disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board has also considered whether separate ratings are warranted for the scars associated with the Veteran's service-connected right knee disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). During the April 1998 VA examination, the examiner reported that the right knee scar was less than one inch. The May 1998 VA treatment record noted that the right knee incisions were well-healed. These references do not support the assignment of a separate rating for any of the scars located on the Veteran's right knee as they are not deep and do not cause limited motion in an area that exceeds six square inches (39 square centimeters); are not deep and nonlinear in an area of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); are not superficial without causing limited motion or superficial and nonlinear in an area of 144 square inches (929 square centimeters) or greater; are not superficial and unstable or painful on examination; and none of the scars limits the Veteran's right knee function. See 38 C.F.R. § 4.119, Diagnostic Codes 7801-7805 (2007); 73 F.R. 54708 (Sep. 23, 2008). Rather, any limitation of right knee function has been considered in the orthopedic rating assigned for the Veteran's right knee disability. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the 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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's right knee disability, to include pain and limitation of motion, are contemplated by the rating criteria (i.e., 38 C.F.R. §4.71a, Diagnostic Codes 5256-5263), which reasonably describe the Veteran's disability. Therefore, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A disability rating in excess of 10 percent, other than during a period of temporary total disability from January 16, 1998, to March 1, 1998, for service-connected chronic synovitis of the right knee is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs