Citation Nr: 1332023 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 05-41 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased initial rating for right knee arthritis, rated 10 percent disabling for limitation of flexion and rated 30 percent, effective May 24, 2011, for limitation of extension. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to April 1968, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from November 2003 and December 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The November 2003 rating decision granted service connection for a right knee disability, and assigned a 10 percent rating for arthritis of the knee, pursuant to Diagnostic Code 5003, and a separate 10 percent rating for instability of the right knee pursuant to Diagnostic Code 5257. Notice of that decision was provided to the Veteran in January 2004. In September 2004, approximately nine months after receiving notice of the November 2003 rating decision, the Veteran requested an increase in his knee disability ratings, and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In support of his claim, he submitted new and material evidence from the Social Security Administration (SSA) showing that he was receiving Social Security Disability benefits for a right knee disability. That evidence was considered new and material because it raises the possibility that the Veteran's service-connected knee disability could potentially be more severe than what it was initially rated at that time. Because the Veteran submitted new and material evidence within one year of the January 2004 notice of the November 2003 rating decision, the November 2003 rating decision was not final, despite that the Veteran's September 2004 correspondence did not indicate that he specifically disagreed with the November 2003 decision. 38 C.F.R. § 3.156(b) (2012). When new and material evidence is received prior to the expiration of the appeal period, the evidence abates the finality of a prior decision and tolls the time for filing an appeal until a new decision has been issued. 38 C.F.R. § 3.156(b) (2012); Muehl v. West, 13 Vet. App. 159 (1999). A December 2004 rating decision continued the initial 10 percent rating assigned for the right knee arthritis. In September 2006, the Veteran was afforded a Travel Board hearing before the undersigned. In July 2007, the Board remanded the Veteran's claims for additional development. When the case was again before the Board, a decision was issued in July 2009, that denied the claim on appeal. The Veteran appealed the July 2009 Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, an October 2010 Order of the Court vacated the Board's denial of the Veteran's claims and remanded them for readjudication in accordance with the Joint Motion. In April 2011, the Board remanded the claim for additional development as directed by the parties to the Joint Motion. After completion of additional development, an August 2012 rating decision granted service connection and assigned a 30 percent rating for limitation of extension of the right knee, effective May 24, 2011. The August 2012 rating decision also continued the previously assigned 10 percent rating for arthritis of the right knee, but recharacterized the rating as being based on noncompensable limitation of flexion. Therefore, the RO assigned separate disability ratings for limitation of flexion and limitation of extension, as of May 24, 2011, despite the fact that only the Veteran's extension was limited to a compensable degree. In November 2012, the Board remanded the claim on appeal. A January 2013 rating decision granted TDIU. As that decision is a full grant of the benefit sought as to that issue, it is no longer on appeal. FINDINGS OF FACT 1. Prior to May 24, 2011, the Veteran's service-connected right knee disability was manifested by flexion of varying degrees, limited, at most, to 60 degrees and more often to, at least, 100 degrees with normal extension. 2. From May 24, 2011, to December 16, 2012, the Veteran's service-connected right knee disability was manifested by flexion limited, at most, to 105 degrees and extension limited to 20 degrees. There is no evidence of extension limited to 30 degrees or ankylosis. 3. As of December 17, 2012, the Veteran's service-connected right knee disability has been manifested by flexion to 50 degrees with objective evidence of painful motion beginning at 30 degrees and extension limited to 20 degrees. 4. The December 17, 2012 VA examination report first demonstrates that the Veteran has acquired genu recurvatum due to weakness and insecurity in weight bearing. CONCLUSIONS OF LAW 1. Prior to May 24, 2011, the criteria for a rating in excess of 10 percent for right knee arthritis were not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003 (2012). 2. As of May 24, 2011, the criteria for an increased rating, greater than 30 percent for limitation of extension of the right knee and 10 percent for arthritis with limitation of flexion, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 3. The criteria for a separate 10 percent rating for genu recurvatum of the right knee have been met, effective December 17, 2012. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in June 2002, October 2004, October 2007, and December 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of staged ratings, the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, excess motion, fatigability, incoordination, and other factors. 38 C.F.R. §§ 4.40, 4.45 (2012). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted , pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 38 C.F.R. §§ 4.40, 4.45 (2012); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Therefore, painful motion should be considered to determine whether a higher rating is warranted, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 (2012). The Veteran's right knee disability has been previously assigned a separate rating for instability, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. That disability rating is not on appeal and any findings pertaining to instability are not discussed in this decision. In the November 2003 rating decision, the Veteran's arthritis of the right knee was initially rated 10 percent under Diagnostic Code 5003, essentially for limitation of motion that was not of such a degree to be compensable under other limitation of motion diagnostic codes. A December 2004 rating decision continued the 10 percent disability rating, but changed the Diagnostic Code to 5010-5260, indicating that the rating was assigned based on limitation of flexion due to arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260 (2012). An August 2012 rating decision granted a separate 30 percent rating for right knee limitation of extension pursuant to 5003-5261, effective May 24, 2011. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5261 (2012). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 pertains to traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Diagnostic Code 5260 pertains to limitation of flexion of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 pertains to limitation of flexion of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Codes 5260, for limitation of flexion of the leg, and Diagnostic Code 5261, for limitation of extension of the leg. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Under Diagnostic Code 5260, limitation of flexion to 60 degrees warrants a 0 percent rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Limitation of flexion to 30 degrees warrants a 20 percent rating. Limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5261, limitation of extension to 5 degrees warrants a 0 percent rating. Limitation of extension to 10 degrees warrants a 10 percent rating. Limitation to 15 degrees warrants a 20 percent rating. Limitation of extension to 20 degrees warrants a 30 percent rating. Limitation of extension to 30 degrees warrants a 40 percent rating. Limitation of extension to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a (2012). Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2012). Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same knee. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59,990 (2004). A March 1998 private medical record shows that the Veteran complained of pain. He had mild chronic effusion of the right knee. There was some mild crepitus with flexion and extension. Flexion was limited to 90 degrees due to pain. X-rays were assessed with degenerative joint disease of the right knee. A July 1998 private medical record shows that the Veteran reported a history of knee pain for many years. Physical examination revealed that the Veteran's gait was antalgic, and he favored the right knee. He was unable to squat or walk on his toes because of pain in the right knee. He had crepitus and cracking in his right knee when he tried to squat. He did not have any edema on examination. He had keen pain going through range of motion of the hip. Flexed extension of the knee was limited and he was only able to flex/extend the right knee approximately 90 degrees and it was extremely painful. The doctor's statement was that it would be difficult for the Veteran to do a job that required bending, squatting, lifting, or climbing maneuvers. He would need a job that allowed him to rest and sit down and elevate his legs for periods of time. He appeared able to ambulate with the knee immobilizer, although he still had pain. An August 1999 VA joints examination report shows that the Veteran complained of persistent pain with swelling. Physical examination revealed that the Veteran had a lumbering gait and that he wore a right knee brace. The Veteran had full extension without hyperextension and flexion to 95 degrees until pain prevented further motion. The impression was status post multiple right knee injuries in the past with ultimately degenerative arthritis and probably medial cartilage disruption. An August 2002 VA joints examination report shows that the Veteran had complaints of pain, weakness, stiffness, swelling, heat, and redness of the right knee. Flare ups of joint pain occurred with cold weather and standing on the right knee for a long period of time. He used a brace on the right knee. He has not had surgery, but was told that he needed a total knee replacement for the right knee. Physical examination revealed swelling deformity of the right knee. Flexion was about 90 degrees with pain on the right knee. Crepitus was noted on movement of the right knee. He had tenderness in the medial joint compartment of the right knee and there was limitation of movement of the right knee because of the pain. There was edema and effusion. The Veteran had a limping gait and tended to favor the right knee. There was no ankylosis of the right knee. There was arthritis. An MRI was taken. The final diagnosis was chronic tear of the arterial cruciate ligament of the right knee and osteoarthritis of the right knee. VA medical records dated in January 2004 show the Veteran complained of increasing right knee pain and that he wore a knee brace. A February 2004 x-ray examination showed advanced osteoarthritic changes of the right knee. The assessment was right knee pain related to severe degenerative joint disease (DJD). A March 2004 report notes significant and severe arthritis of the right knee, especially of the medial compartment, with almost bone-on-bone contact. The Veteran was told that he needed a total knee replacement, but was too young and overweight. He continued to wear a brace and took medication which provided him some relief. In May 2004, the Veteran had continued complaints of right knee pain and it was noted that x-rays revealed severe DJD in his right knee. Range of motion of the right knee decreased significantly to the left. The assessment was severe right knee degenerative disease. At an October 2004 VA general medical examination, it was noted that he received disability benefits from the Social Security Administration for his right knee disability. He had continuous right knee pain rated 8 out of 10 on the pain scale. Flare-up pain was rated as a 10 on the pain scale and occurred with getting up and out of a chair, and ascending and descending stairs. He was not a candidate for knee replacement and had not undergone surgery or received any right knee injections. However, he wore a brace and took Oxycodone on an as-needed basis for disabilities of his knee, hip, and back. It was noted that he could do repetitive bending times five limited by pain at that point. He had full extension. He had flexion limited to 60 degrees due to pain. While there was no objective finding of instability, any type of movement caused pain. The assessment was severe degenerative arthritis of the right knee. The examiner opined that the Veteran was unemployed so his right knee disability had no bearing on his occupation. VA medical records dated in October 2004 show additional complaints of right knee pain and an assessment of chronic, but stable, osteoarthritis. A December 2004 report notes that the Veteran had DJD and osteoarthritis of the knees, especially the right knee, that would require a total knee replacement in the future. While he ambulated in and out of the examination room without difficulty and got off and onto the examination table without assistance, he walked with a little bit of a limp. In February 2005, he complained of some knee pain, assessed as chronic pain, DJD, and osteoarthritis of the knees. In March 2005, he reported that his right knee pain remained unchanged. In April 2005, it was strongly recommended that he lose weight and began regular physical exercises. In May 2005, while he had additional complaints of chronic knee pain and the assessment was unchanged from December 2004, he saw improvement with pain medication. In September 2006, the Veteran testified that he had difficulty getting out of bed, ascending and descending stairs, walking long distances, and with prolonged sitting and standing. He testified that the right knee occasionally "snapped," locked, and "gave way" and that he wore a knee brace at all times. He was offered use of a cane which he declined to use because it felt awkward and he feared that it would cause him to fall. The Veteran further testified that he could not fully extend his leg or bend it back all the way. An August 2008 VA joints examination shows that the Veteran complained of right knee pain. He used a brace on his right knee. There was no additional limitation following repetitive use. While there were no flare-ups, right knee instability was noted. On examination, the joints were painful on motion, but there was no weakened movement, fatigability, or incoordination following repetitive use. Examination of the right knee revealed a positive McMurray's test and a negative Drawer test. He walked with a limping gait with transference of weight on the left knee, used a cane, and wore a brace on the right knee. He was diagnosed with DJD of the right knee. The examiner opined that it was at least as likely as not that the Veteran's right knee disabilities precluded him from securing substantial and gainful employment consistent with his education and occupational experience. In March 2009, the prior VA examiner re-examined the Veteran's right knee and reported that he had extension of the right knee to 0 degrees with pain and 120 degrees of flexion with pain. An x-ray examination showed DJD of the right knee with suprapatellar fusion without any fracture of dislocation. There was painful motion without any weakened movement, exophytic ability, or incoordination of the right knee. In addition, there was no additional limitation, weakened movement, fatigability, or incoordination following repetitive movement of the right knee. In addition, there were no flare-ups. McMurray's test was positive which expressed right knee instability, but the Drawer test was negative. The examiner diagnosed mild-to-moderate instability of the right knee and opined that the Veteran's service-connected knee disability did not preclude him from sedentary work. An April 2009 VA orthopedic clinic record notes that the Veteran had very severe DJD of both knees. His symptoms were considerable, but less than would be expected given the x-ray appearance. A February 2010 VA orthopedic record shows that the Veteran stated he could no longer stand the night pain. He had right knee severe DJD. The Veteran stated that his right knee pain was getting worse. He only had 100 degrees of the right knee. Surgery was discussed. In April 2010, the Veteran cancelled a right total knee replacement surgery. In August 2010, the Veteran was seen in the VA pain clinic. It was noted that the Veteran has had knee osteoarthritis for a long period of time, but recently became very painful. He walked with two crutches. Both knees were in braces and obviously deformed. X-rays show bilateral, severe medial compartment arthritis, misalignment, and lack of cartilage padding. Also, large osteophytes were demonstrated. On examination, the Veteran's knees were noted to be obviously deformed and have a varus deformity. A November 2010 VA medical record shows that the Veteran was seen for evaluation for a scooter. Physical examination revealed that the Veteran was without acute pain. He stood up from a chair with maximal arm support and used two crutches for ambulation. His gait was slow and wide based. He wore knee braces. There was valgus deformity of both knee joints and hammertoes and edema. He had tenderness to palpation of anterior and medial joint lines. He had decreased range of motion of both knee joints with maximal flexion of above 140 degrees. The assessment was that the Veteran had severe degenerative joint disease of both knees and had impaired long distance ambulation, in part, due to his service-connected right knee disability. A May 24, 2011, VA joints examination report shows that the Veteran reported ongoing problems with his right knee. He stated it was painful and swelled. He ambulates with two crutches and knee braces. He also took prescription pain medicine. Symptoms reported included right knee deformity, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and that the condition affects the motion of the joints. He was unable to stand for more than a few minutes and was able to walk one quarter mile. He wore braces and used crutches daily. At home or shopping, he used a wheelchair. Physical examination revealed that the Veteran had bilateral genu valgrum with other evidence of abnormal weight bearing. He had crepitus, tenderness, and abnormal motion. There was no crepitation. He had grinding. There was no ankylosis. Range of motion testing revealed that there was objective evidence of pain with active motion. He had flexion to 105 degrees and extension limited by 20 degrees. The diagnosis was right knee osteoarthritis. The examiner concluded that the Veteran's right knee disability had significant effects on occupation in that he had decreased mobility, problems with lifting and carrying, and decreased strength in the lower extremity. His right knee disability also prevented him from doing chores, shopping, exercise, sports, recreation, and driving. The VA examiner opined that the Veteran would be able to be employed in a sedentary job despite his right knee osteoarthritis. A December 17, 2012, VA examination report shows that the VA examiner reviewed the claims file and performed an in-person examination. The examiner noted that the Veteran had severe DJD of the right knee and required Tramadol for the pain. He had not been able to walk since about January 2012. The Veteran did not have flare-ups that impacted the function of the knee or the lower leg. Range of motion testing revealed flexion to 50 degrees with objective evidence of painful motion beginning at 30 degrees. Right knee extension was to 20 degrees, noting that the Veteran is unable to fully extend. On repetitive-use testing, the Veteran's post-test flexion ended at 50 degrees and extension ended at 20 degrees. The Veteran did not have additional limitation in range of motion of the knee and lower leg following repetitive-use testing. The Veteran had functional loss or impairment identified by the VA examiner as less movement than normal, weakened movement, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran had tenderness or pain to palpation for joint line or soft tissues of the knee. He had normal strength on flexion and extension. The VA examiner also found that the Veteran also had acquired genu recurvatum due to weakness and insecurity in weight bearing. The VA examiner opined that the Veteran's DJD of the right knee with instability made him unable to secure and maintain both sedentary and physical employment. The Veteran had extremely severe right knee pain when doing stability examination on his right knee. He could just barely get around using a wheel chair. Prior to May 24, 2011 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent prior to May 24, 2011. Prior to May 24, 2011, the evidence, collectively, shows that the Veteran has had normal extension, which would not warrant a compensable rating under Diagnostic Code 5261 prior to May 24, 2011. Moreover, while there has been limitation of flexion of the right knee to 60 degrees with pain, on two occasions - such has not be been shown to be to an extent that would warrant a compensable rating under Diagnostic Code 5260. In fact, pursuant to Diagnostic Code 5260, limitation of flexion of the right knee to 60 degrees specifically warrants a 0 percent disability rating. Thus, no more than a 10 percent rating is warranted for the Veteran's right knee disability for the period prior to May 24, 2011. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Even considering functional loss due to pain and other factors, the evidence still does not show limitation of flexion or extension to a compensable degree such that any higher rating would be warranted. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain in and of itself does not constitute functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The evidence during this period simply does not demonstrate measurable functional loss that would equate to a loss of flexion or extension that would support the assignment of a higher disability rating. Therefore, for the period prior to May 24, 2011, a 10 percent rating for the Veteran's right knee disability is based on the criteria for rating arthritis under Diagnostic Code 5003. Furthermore, the Board finds that any higher rating is not warranted for the right knee because, despite the pain and swelling, the evidence does not show limitation of flexion to 30 degrees, the criteria for a higher 20 percent disability rating under Diagnostic Code5260. Further, the Board finds that separate ratings for limitation of extension and flexion are not warranted because to assign separate ratings for the right knee based upon painful motion, in addition to the current rating assigned for degenerative arthritis pursuant to Diagnostic Code 5003, would be pyramiding and because neither the limitation of flexion nor the limitation of extension in either knee is shown to meet the criteria for a compensable rating during this period such rating is not warranted. Lastly, there is no evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations to warrant a higher 20 percent rating under Diagnostic Code 5003. Furthermore, the evidence prior to May 24, 2011, does not show ankylosis, dislocated or removed semilunar cartilage, or genu recurvatum such that any other or higher rating would be warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent based on limitation of motion and painful motion on flexion of the right knee that is noncompensable under Diagnostic Codes 5260 and 5261, with X-ray evidence of arthritis. Based on the clinical findings on multiple examinations, there is no basis for any higher or separate ratings beyond those already assigned prior to May 24, 2011. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of May 24, 2011 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment ratings in excess of 30 percent for limitation of extension and 10 percent for limitation of flexion from May 24, 2011, to December 26, 2012. The May 24, 2011 VA examination provided objective findings that the Veteran's right knee on range of motion testing had extension limited to 20 degrees. Pursuant to the criteria for rating limitation of extension, a 30 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). An August 2012 rating decision, indicated that it was granting service connection and assigning a 30 percent disability rating for right knee extension, effective May 24, 2011, the date of the VA examination showing compensable limitation of motion, based on limitation of extension. However, the effect of the August 2012 rating decision that stated it was granting service connection and assigning a 30 percent rating for right knee extension was to assign two disability ratings for the right knee based on limitation of flexion and extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5261 (2012). At the time of the May 24, 2011 VA examination, the Veteran was found to have flexion limited to 105 degrees. Even with consideration given to objective findings of pain, crepitus, tenderness and abnormal motion such symptoms do not more nearly approximate the criteria for an increased rating for limitation of flexion under Diagnostic Code 5260. In fact, they do not meet the criteria for the 10 percent rating that has been assigned. Therefore, the Board finds that an increased rating, greater than 10 percent, for limitation of flexion is not warranted. At no time prior to December 17, 2012, has the Veteran been found to have extension limited to 30 degrees, the criteria required for the next higher rating under Diagnostic Code 5261. In addition, the evidence prior to December 17, 2012, does not show ankylosis, dislocated or removed semilunar cartilage, or genu recurvatum. Therefore, the preponderance of the evidence is against the assignment of any higher or separate ratings beyond those already assigned. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of December 17, 2012 The December 17, 2012 VA examination demonstrated that the Veteran's service-connected right knee disability was manifested by flexion to 50 degrees with objective evidence of painful motion beginning at 30 degrees. In addition, the VA examiner concluded that the Veteran had functional loss or impairment identified as less movement than normal, weakened movement, incoordination, pain on movement, disturbance of locomotion and interference with sitting, standing, and weight-bearing. The Veteran was also found to have tenderness or pain to palpation for joint line or soft tissues of the knee. In this case, the Board finds that the Veteran's limitation of flexion to 50 degrees with the additional functional losses more nearly approximate the criteria for a 10 percent rating under Diagnostic Code 5260, for flexion limited to 45 degrees. However, while painful motion begin at 30 degrees, the Veteran was capable of flexion to 50 degrees after repetitive motion. Therefore, the Board finds that a higher rating is not warranted because flexion is not shown to be limited to 30 degrees as is required for a higher rating. Therefore, the Board finds that a higher rating for limitation of flexion was not warranted. With regard to the Veteran's 30 percent disability rating for limitation of extension, in order to warrant a higher 40 percent rating, the evidence would have to show that the Veteran's right knee had limitation of extension to 30 degrees. However, there is no evidence that the Veteran has been found to have extension limited to 30 degrees, nor has the evidence more nearly approximated the next higher rating. In addition, the evidence does not show ankylosis or any dislocation or removal of the semilunar cartilage that would warrant any higher rating. However, the Board finds that the Veteran is entitled to a separate 10 percent rating for acquired genu recurvatum. Specifically, in December 2012, the VA examiner clearly found that the Veteran had acquired genu recurvatum due to weakness and insecurity in weight bearing. Thus, the Board is granting a separate 10 percent rating for genu recurvatum pursuant to Diagnostic Code 5263 as of December 17, 2012. There is no higher schedular rating available based on genu recurvatum. The Board has also considered the potential applicability of other diagnostic codes pertaining to the knee for all periods of this appeal. However, diagnostic Codes 5256, 5258, 5259, and 5262, are not applicable because the evidence of record does not demonstrate ankylosis, dislocation of the semiulnar cartilage, or malunion of the tibia and fibula. 38 C.F.R. § 4.71a (2012). Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate ratings as of December 17, 2012, than those already assigned, except that a 10 percent rating for genu recurvatum is warranted as of December 17, 2012. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above determinations are based on application of pertinent provisions of VA's rating schedule. In this case, the Board finds that at no point since the effective date of the grant of service connection has the Veteran's service-connected right knee disability been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). There is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for this issue. Shipwash v. Brown, 8 Vet. App. 218 (1995). The record does not show that the Veteran was hospitalized for his service-connected right knee disability. There is no objective evidence revealing that his service-connected right knee disability alone caused marked interference with employment, and a TDIU has been assigned effective September 13, 2004. The evidence prior to September 13, 2004, does not show marked interference with employment. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's service-connected right knee disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 10 percent for right knee arthritis pursuant is not warranted for the period prior to May 24, 2011, and the claim for increase is denied. Ratings in excess of 30 percent for right knee arthritis, manifested by limitation of extension, and 10 percent due to limitation of flexion are not warranted for the as of May 24, 2011, and the claim for increase is denied. A separate 10 percent rating for genu recurvatum of the right knee, effective December 17, 2012, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs