Citation Nr: 1333635 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-27 911A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for postoperative residuals of a right knee injury with patellar subluxation. 2. Entitlement to a rating in excess of 10 percent for postoperative residuals of a right knee injury with limitation of extension prior to May 31, 2012; to a rating in excess of 20 percent from December 1, 2012, to January 27, 2013; and to a rating in excess of 40 percent since January 28, 2013. 3. Entitlement to a compensable rating for postoperative residuals of a right knee injury with limitation of flexion. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and P. B. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from June 1966 to January 1969 and from September 1977 to March 1979. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. Historically, the Veteran appealed a March 2006 rating decision which denied a rating in excess of 10 percent for postoperative residuals of a right knee injury and denied service connection for a left knee disorder, and that action was confirmed and continued by rating decisions in September 2007 and June 2008. The Veteran and P. B. testified at a videoconference before the undersigned Veterans Law Judge (VLJ) in October 2010. A transcript thereof is on file. Following an August 2011 opinion from a Veteran's Hospital Administration (VHA) medical expert, a December 2011 Board decision granted service connection for left knee disability and remanded the claim for an increased rating for the right knee disorder for consideration of additional evidence. A March 2012 rating decision effectuated the Board grant of service connection for left knee disability and assigned a noncompensable rating effective October 31, 2005, and a 10 percent rating effective May 4, 2007. The Veteran did not express agreement with the downstream elements of the effective dates for the grant of service connection or the disability ratings assigned. So, those matters are not before the Board. An August 2012 rating decision (contained within Virtual VA) assigned a temporary total rating for the right knee disorder based on need for convalescence under 38 C.F.R. § 4.30 (called a convalescent rating), effective the date of right knee surgery on June 1, 2012; and a 10 percent schedular rating was to be resumed October 1, 2012. However, a September 2012 rating decision extended the period of the convalescent rating to November 30, 2012, and a 10 percent rating resumed effective December 1, 2012. In December 2012 the Board remanded the case to obtain private clinical records and afford the Veteran a rating examination after recent right knee surgery. A May 2013 rating decision granted service connection for patellar subluxation of the right knee which was assigned an initial 10 percent rating effective March 8, 2012. The rating decision also assigned a 20 percent schedular rating following the convalescent rating for the postoperative residuals of a right knee injury with limitation of extension effective December 1, 2012, and a 40 percent rating was assigned effective January 28, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (for limitation of extension). A June 2013 rating decision granted a separate noncompensable rating for postoperative residuals of a right knee injury with limitation of flexion, effective January 3, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (for limitation of flexion). In correspondence in July 2013 the Veteran stated that he wished to file a claim for compensation under the provisions of 38 U.S.C.A. § 1151. However, in that correspondence he referenced only his disabilities of his knees. As his is already service-connected for disability of the each knee, all impairment of the knees is encompassed in the current and past ratings assigned. As he has not specified, or even suggested, that there is some other disability which warrants compensation under 38 U.S.C.A. § 1151 no such claim if before the Board. The Veteran is advised to consult with his service representative if he desires to pursue this matter. FINDINGS OF FACT 1. The persuasive competent evidence does not show that the Veteran has ever had a dislocated semilunar cartilage and he has not had more than slight instability or laxity of the right knee at any time but slight ligament laxity is shown as of VA examination on May 24, 2012. 2. Prior to May 31, 2012, the service-connected right knee disability was not manifested by limitation of extension of or which more closely approximated 15 degrees. 3. From December 1, 2012, to January 27, 2013, the postoperative residuals of a right knee injury with limitation of extension were not manifested by limitation of extension of 15 degrees or greater. 4. Since January 28, 2013, the postoperative residuals of a right knee injury with limitation of extension has been manifested by limitation of extension to 35 degrees but less than 45 degrees. 5. Since March 8, 2013, the postoperative residuals of a right knee injury with limitation of flexion have been manifested by limitation of flexion to 50 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for postoperative residuals of a right knee injury with patellar subluxation are not met but a 10 percent rating for this disability is warranted from May 24, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a rating in excess of 10 percent for postoperative residuals of a right knee injury with limitation of extension prior to May 31, 2012, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5261 (2012). 3. The criteria for a rating in excess of 20 percent for postoperative residuals of a right knee injury with limitation of extension from December 1, 2012, to January 27, 2013, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5261 (2012). 4. The criteria for a rating excess of 40 percent postoperative residuals of a right knee injury with limitation of extension since January 28, 2013, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5261 (2012). 5. The criteria for a rating of no more than 10 percent for postoperative residuals of a right knee injury with limitation of flexion since March 8, 2013, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) mandates a VA duty to notify and assist claimants in claim substantiation. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). VA must inform a claimant of any information and medical or lay evidence not of record (1) needed to substantiate a claim; (2) which VA will seek to provide; and (3) which the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This applies to all elements of a service-connection claim, including information that a disability rating and an effective date for any award will be assigned if service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was intended to be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely, this may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA notice requirements include notice to provide, or ask VA to obtain, medical or lay evidence of increased severity and the impact thereof on employment to substantiate the claim; and providing examples of types of medical or lay evidence that may be submitted, or that VA can be asked to obtain, which are relevant to establishing an increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). The RO provided the Veteran with pre-adjudication VCAA notice by letter, dated in January 2006. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence of an increase in severity and the types of evidence the Veteran was expected to provide, including the information VA would need in order obtain, on his behalf, any private, VA or other Federal records. By RO letter dated in August 2008 he was informed of how VA determined effective dates and disability ratings. He was informed that VA would consider evidence of the nature and symptoms of the condition, the severity and duration, and impact of the condition and symptoms on employment. Examples of types of evidence which could be considered were listed. All this was in compliance with the holding in Vazquez-Flores, Id. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran's service treatment records (STRs) are on file, as are voluminous private clinical records (much of which consist of duplicate copies submitted on several occasions by the Veteran). Also on file are copies of VA outpatient treatment (VAOPT) records as well as electronic VA medical records (CAPRI records) contained in the Virtual VA paperless claims processing system. The Veteran and another witness testified in support of the claims at a videoconference before the undersigned VLJ October 2010. Bryant v. Shinseki, 23 Vet. App. 488 (2010) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer/Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The issues on appeal were identified at that videoconference and testimony was elicited from the Veteran and his supporting witness as to the relevant clinical history and the severity of his right knee disability, including functional impairment stemming therefrom. While the VLJ did not specifically suggest the submission of any evidence that may have been overlooked, the case was remanded for additional evidence in 2011 for consideration of additionally submitted evidence and again in December 2012 for a VA rating examination following right knee surgery during the pendency of this appeal. Moreover, neither the Veteran nor representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the videoconference. Thus, the Board finds that, consistent with Bryant, Id., the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the appeal based on the current record. Even if not all elements required for claim substantiation are explicitly set forth at a hearing, if those matters are developed by VA, there is no indication of any outstanding additional evidence or information, and particularly if any VA examination was conducted to address such matter, the purpose of 38 C.F.R. § 3.103(c)(2) if fulfilled. See Bryant v. Shinseki, 23 Vet. App. 488, 498-99 (2010) (a VA examination addressing the elements of a claim, when there was no indication of outstanding evidence, satisfied 38 C.F.R. § 3.103(c)(2) even when those elements were not explicitly set forth those material issues at a hearing). In fact, in this case, since the Veteran's October 2005 claim he has been afforded VA rating examinations of his right knee in February 2006, May 2007, May 2012, and March 2013. And all this was in substantial compliance with the Board remands. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998)). As there is neither indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background Historically, a November 1979 private medical statement noted that the Veteran had had a right knee arthrotomy in 1977 for a loose body. A January 1980 private operative report reflects that he had realignment of the quadriceps mechanism with lateral release and medial reefing, as well a chondroplasty with drilling of the patella. On VA examination in February 2006, following the Veteran's October 2005 claim for an increased rating, the medical records were reviewed and he reported that his right knee had worsened. He had taken over-the-counter (OTC) nonsteroidal anti-inflammatory drugs (NSAIDs). He did not use an assistive aid for walking and had no incapacitating arthritic episodes. He could stand more than one but less than three hours, and could walk one to three miles. On right knee examination there was no deformity, giving way, instability, weakness, effusion, inflammation or episodes of dislocation, subluxation or locking. There was pain and stiffness. As to weight-bearing, there was no evidence of right knee abnormality. Active flexion against gravity was from 0 degrees to 110 degrees without pain. There was no additional limitation of motion on repetitive use. There was no crepitation, clicks, snaps, grinding, instability, patellar or menisceal abnormality. X-rays revealed mild to moderate narrowing of the medial joint compartment, moderate patellofemoral compartment narrowing, osteophytes along the superior margin of the patella, and minimal joint effusion, probably degenerative. The diagnosis was right knee degenerative joint disease (DJD). He was not employed and the effects on activities of daily living were none as to toileting and grooming; mild as to chores and dressing; and moderate as to shopping, exercise, sports, recreation, and traveling. A January 2007 private medical report indicates that the Veteran had had to quit his job as a policeman because right knee pain precluded his kneeling, stopping and squatting. On examination he had right knee popping and grinding as well as 1+ effusion with synovitis. X-rays revealed multiple loose bodies. The private physician felt that the Veteran had, overall, 20 to 30 percent, or more, disability due to the right knee. VA outpatient treatment (VAOPT) records show that in March 2007 the Veteran complained of recurrent aching right knee pain which increased to sharp pain with prolonged standing, kneeling or stooping, or climbing stairs. He reported having retired a year early as a police officer due to this pain. On examination his gait was normal. He had a well healed surgical right knee scar. He had decreased flexion (which was not measured) and increased patellofemoral crepitus but negative Drawer's and Lachman signs. There was no varus or valgus laxity. An April 2007 private clinical report reflects that the Veteran had bilateral knee crepitus and a bilateral antalgic limp. On VA examination in May 2007 the Veteran's medical records and claim file were not reviewed. He reported that his right knee had worsened and he had taken over OTC NSAIDs. He did not use an assistive aid for walking and had no incapacitating arthritic episodes. He could stand for up to one hour and could walk 1/4 of a mile. On examination there was no deformity, giving way, instability, weakness, effusion, inflammation or episodes of dislocation, subluxation or locking. He had pain and stiffness of that knee. He had moderate flare-ups every 2 to 3 weeks causing pain lasting 1 to 2 days. His gait was normal and there was no abnormality of weight-bearing. Flexion against gravity, strong resistance, and passively was 0 to 90 degrees without pain. He had additional limitation of motion on repetitive use due to pain which ranged from "0 to 90 degrees." There was no joint ankylosis. He had crepitus and painful right knee motion consistent with Osgood-Schlatter's disease but no grinding, instability, patellar or meniscus abnormality. X-rays revealed minimal osteoarthritis of the medial tibiofemoral joint and the patellofemoral joint, with no change compared to X-rays in February 2006. He was not employed and the effects on activities of daily living were none as to feeding, bathing, dressing, toileting, and grooming; mild as to traveling; and moderate as to chores, shopping, and recreation; severe as to exercise; and sports was precluded. A June 2007 VAOPT record shows that the Veteran reported that his right knee pain had worsened in the last couple of years and it was now difficult to squat and climb stairs when he had severe pain, and with severe pain the knee felt as if it would give out. He could walk a short distance, 1 or 2 blocks before he began to limp and would have to rest. He had not used a cane. On examination there was no significant limp. He had crepitation of the right knee with marked tenderness and pain on patellar motion. He also had crepitation with range of motion, which was restricted being from 0 degrees to 110 degrees, and he resisted motion beyond that due to pain. There was medial and lateral joint line tenderness and no signs of ligamentous or capsular laxity, or patellar subluxation. X-rays showed less arthritis in the right than the left knee. He was to be given a cane for better ambulation. An October 2007 VAOPT record shows that in the past the Veteran had had a lateral retinacular release. A private physician had now recommended arthroscopic removal of loose bodies from the left knee. He had a catching sensation in the right knee with an occasional tendency to give way but there was no history of locking. On examination there was no ligamentous right knee laxity and McMurray's test and Lachman's tests were negative. Right knee motion was from 0 degrees to 115 degrees. He was given an injection of steroidal medication into the right knee. In February 2008 he had full range of motion, although motion was not measured in degrees, and bilateral patellofemoral crepitation. Steroidal medication was injected into each knee. In February 2008 Dr. W. C. B. reported that the Veteran had significant arthritic knee changes, bilaterally, which was quite debilitating. An October 2009 VAOPT record shows that the Veteran had active right knee motion from 12 degrees to 100 degrees and the knee was stable to varus and valgus stress. At the October 2010 Board videoconference the Veteran testified that due to his right knee he was unable to run, jump, mow, climb or participate in sports. Page 5 of that transcript. He had had to retire early because he could not perform his duties. He now had swelling, aching, and stiffness. Page 6. He had to use a cane when walking. He could not stand unassisted for extended periods of time. He had difficulty ambulating on uneven ground and walking up stairs. Page 7. Another witness testified that the Veteran sometimes used furniture for balance or support. Page 8. He had last been seen by VA in October 2007, and was dissatisfied with his past VA treatment. Page 9. His knee would give out 2 or 3 times a month, but sometimes on a daily basis. Page 18. The Veteran testified that his surgical right knee scar caused him continuous problems. Initially, after his first right knee surgery that scar had been about 3 inches long but after the 2nd surgery it was now almost 10 inches long. The scar was painful. Page 22. It was tender to touch and sometimes lost color but did not become scabby. Page 23. He had retired early as a police officer due to his right knee. Page 24. He had not been hospitalized for either knee. Page 25. A private right knee MRI in February 2011 found chondromalacia in the pre-patellar cartilage which was likely degenerative in nature; osteoarthritic changes or tricompartmental joint space narrowing and osteophytes; tendinosis of the quadriceps tendon but no evidence of full thickness tear or tendinous retraction; and a large popliteal Baker's cyst but no menisceal injury. An adjunct report shows that Dr. K. S. felt that the Veteran probably had loose bodies and chondral flap tears; and arthroscopic debridement was recommended in light of the failure of conservative treatments and his severe mechanical dysfunction. On examination he had normal right knee range of motion and no ligamentous instability. Muscle strength and sensation were normal. On VA examination on May 24, 2012, it was reported that the Veteran had flare-ups that impacted right knee function due to, by the Veteran's description, pain, swelling, and locking. On examination right knee flexion was without pain to 50 degrees (with 140 being normal) but with pain at that point. Right knee extension was full and painless to 0 degrees. After three repetitions of motion, right knee flexion was to 40 degrees and extension remained full to 0 degrees. Additional functional loss of use of the right knee after repetitive motion was due to limited and painful motion, weakened movement, excess fatigability, incoordination, as well as interference with sitting, standing, and weight-bearing. He had tenderness or pain on palpation of the right knee joint line. Right knee strength was 4/5 in flexion and extension. He had posterior and anterior instability of 1+ in the right knee but no lateral or medial instability. There was no evidence of or a history of recurrent patellar subluxation or dislocation. He had not had shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or other tibial or fibular impairment. It was reported that he did not have any menisceal condition or surgical procedure for a menisceal condition, had not had a meniscectomy, and did not have any residuals signs or symptoms due to a meniscectomy. Also, he did not have any residuals signs or symptoms due to past right knee surgeries. His postoperative right knee scar was not painful or unstable and was less than 39 square centimeters. He constantly used a cane for walking due to his right knee disability. X-rays had shown right knee arthritis but no evidence of patellar subluxation. His right knee condition impacted his ability to work due to pain increasing on bending, climbing, walking, and standing for prolonged periods. Current right knee X-rays revealed no joint effusion, fracture or dislocation. There was mild joint space narrowing in the medial tibiofemoral compartment. There was moderate joint space narrowing in the lateral aspect of the patellofemoral compartment. The radiological impressions were moderate osteoarthritis of the patellofemoral compartment and mild osteoarthritis of the medial tibiofemoral compartment. A June 2012 letter from Dr. K. S. states that the Veteran had right knee surgery on June 1, 2012, which found chondromalacia and a degenerative tear in the right medial meniscus, for which he underwent debridement. The physician felt that a 20 percent disability rating was warranted because the Veteran now had a dislocated medial meniscus (semilunar cartilage) associated with frequent episodes of locking and pain. A January 3, 2013, treatment record of Dr. K. S. shows the a few days earlier the Veteran had twisted his right knee while walking and developed significant pain and swelling. His wife had heard a pop. He had pain and flexion was limited to about 90 degrees. His incisional wound was healing well. He had pain and crepitus on flexion and extension. Right knee motion was from -10 degrees to 110 degrees. He had no pain or crepitus with active quadriceps extension and had a centrally tracking patella. There was no ligamentous instability. It was felt that he had had a medial meniscus tear. A January 8, 2013, right knee MRI revealed degenerative osteoarthropathy with an associated Baker's cyst, chondromalacia, and a degenerative tear of the medial meniscus. A January 16, 2013, treatment record of Dr. K. S. shows that the right knee incisional wound was healing well. Right knee motion was from -10 degrees to 110 degrees. He had no pain or crepitus with active quadriceps extension and had a centrally tracking patella. There was no ligamentous instability. An analgesic was injected into the right knee. On January 28, 2013, it was reported that the Veteran had functional use of motion from -30 degrees of extension to 90 degrees of flexion. Motion beyond these parameters caused severe pain. He also had severe pain and catching in the medical compartment due to osteoarthritis and menisceal cartilage tearing, causing significant pain and dysfunction. Also, on examination his right knee incision wound was healing well. He had pain and crepitus on flexion and extension, and there was tenderness about the knee. Right knee motion was from 10 degrees to 110 degrees with, as stated, functional motion from -30 degrees of extension to 90 degrees of flexion due to severe pain. The ligaments were stable. The Veteran's claim file was reviewed in April 2013, following the formal physical VA examination on March 8, 2013, but at the examination his VA medical records were reviewed. The Veteran reported having flare-ups due to pain and swelling that impacted right knee function. On examination right knee flexion was to only 10 degrees due to pain beginning at that point. Right knee extension was to no more than 35 degrees with pain from 0 degrees to 35 degrees. After three repetitions of right knee motion flexion was to only 10 degrees but he could still extend the knee to 35 degrees. It was noted that he had functional loss, impairment or additional limitation of motion after repetitive use of the right knee due to limited motion, weakened movement, excess fatigability, incoordination, painful motion, swelling, and interference with sitting, standing, and weight-bearing. He had tenderness or pain to palpation of the joint line or soft tissue. Strength against some resistance was 4/5 in flexion and extension. There was no instability of any right knee ligaments. There was a history of recurrent patellar subluxation or dislocation of slight degree. He had not had shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or other tibial or fibular impairment. He had had menisceal surgery for a right menisceal tear with frequent episodes of joint locking and pain. However, it was also reported that he had not had a meniscectomy and had no residual signs or symptoms of a meniscectomy. He had residual pain from a right knee arthroscopy but the residual scar was not painful or unstable and was less than 39 square centimeters. He constantly used a cane to walk and occasionally used a wheelchair. It was reported that there was no X-ray evidence of patellar subluxation. The right knee disability impacted his ability to work due to pain which increased on bending, climbing, walking or standing for short periods. A June 2013 addendum to the March 2013 VA examination noted that the Veteran's claim file had been reviewed. It was stated that the entry on the report of the March 2013 VA examination of flexion being to only 10 degrees was erroneous and that right knee flexion was actually to 50 degrees with pain beginning at that point. The Board finds that the March 2013 VA examination with the June 2013 addendum to be adequate for rating purposes. It contains the appropriate range of motions studies, addresses pain on motion and other symptoms associated with the knee as required by the DeLuca case, and discusses subluxation. See DeLuca v. Brown, 8 Vet. App. 202 (1995)In essence, it addresses the criteria necessary for the Board to appropriately address the Veteran's service connected knee disability. Rating Principles Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted historically to accurately reflect the elements of disability present. 38 C.F.R. § 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim). Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness. Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. Painful motion of a joint with peri-articular pathology is to be at rated at least at the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003 which provides three rating methods for rating degenerative arthritis. First, when there is X-ray evidence rate based on limited motion under the appropriate DCs for the specific joint or joints involved. Second, when motion is not limited or limited only to a noncompensable degree, a minimum, rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined not added. Limited motion must be confirmed by swelling, muscle spasm or satisfactory evidence of painful motion. Third, when there is no limited motion but X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent is warranted but if there are occasional incapacitating exacerbations 20 percent is warranted. With respect to the first method, the appropriate DCs to rated limited motion of a knee are DC 5260, which provides for a minimum, 10 percent, compensable rating for flexion of a knee limited to 45 degrees; and DC 5261, which provides for a minimum, 10 percent, compensable rating for extension of a knee limited to 10 degrees. The second method for rating degenerative arthritis under DC 5003 provides that with no limitation of motion or when the limitation of motion of the specific joint or joints involved is noncompensable, even if due to pain, under the appropriate DCS, 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 DC 5003. However, merely having pain throughout the entire range of motion of a major joint, or groups of minor joints, does not warrant a maximum rating. Rather, any such painful motion must be shown to produce actual functional limitation. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 2011 WL 3672294 at *6, *7. The Court in Mitchell clarified that the Court's prior decisions in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); Hicks v. Brown, 8 Vet. App. 417 (1995); and Powell v. West, 13 Vet. App. 31 (1999) do not: (1) apply a broad principle-that painful motion is limited motion-to the DCs measuring limitation of motion, or (2) conclude that the appropriate remedy for painful motion is a maximum disability rating for limitation of motion. Mitchell, 25 Vet. App. 32 (2011); 2011 WL 3672294 at *7-9. Taken in context, these cases establish simply that a veteran is entitled to a minimum 10 percent rating under the second part of DC 5003 when there is painful motion and X-ray evidence of degenerative arthritis, but where range of motion is not actually limited to a compensable degree. Id.; 2011 WL 672294 at *9 (In Mitchell, Id., the veteran had already had a minimum 10 percent rating but it was clarified that "the presence of pain was only one of several factors that led the Court to reverse the Board's decision" in Powell and that the veteran in Powell had, aside from pain, documented and severe limitation of motion of his spine.) In sum, Mitchell held that pain on motion is not, itself, "functional loss," but "may result in functional loss ... only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance'." Id. at *5 (quoting 38 C.F.R. § 4.40). Separate ratings for limitation of motion in flexion and in extension of a knee may be assigned. See VAOGPREC 9-2004 (September 17, 2004). Also, a compensable degree of limited motion under DCs 5260 and 5261 need not be shown; rather, a compensable rating may be granted, in addition to a rating for instability under DC 5257, if there is X-ray evidence of arthritis and also painful motion under 38 C.F.R. § 4.59. 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) provides that a noncompensable evaluation is warranted for flexion limited to 60 degrees. A 10 percent evaluation is warranted for flexion limited to 45 degrees. A 20 percent evaluation is warranted for flexion limited to 30 degrees and a maximum 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261 (limitation of extension of the leg) provides for a 10 percent evaluation when extension is limited to 10 degrees. A 20 percent evaluation is warranted for extension limited to 15 degrees; a 30 percent evaluation is warranted for extension limited to 20 degrees. A 40 percent evaluation is warranted for extension limited to 30 degrees; and a maximum 50 percent evaluation is warranted to extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. 38 C.F.R. § 4.71a, DC 5257 provides that a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability; and 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. 38 C.F.R. § 4.71a, DC 5258 provides that a 20 percent evaluation, the highest and only rating available under that schedular provision, is assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. Symptomatic residuals of removal of a semilunar cartilage warrant a maximum 10 percent rating. 38 C.F.R. § 4.71a, DC 5259. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. 38 C.F.R. § 4.71a, DC 5256 provides that favorable ankylosis of a knee, at an angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a minimum rating of 30 percent. 38 C.F.R. § 4.71a, DC 5262 provides that malunion of the tibia or fibula with slight knee disability warrants a 10 percent rating; with moderate knee disability 20 percent is assigned; and with marked knee disability a 30 percent rating is assigned. The words "slight", "moderate" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 38 C.F.R. § 4.71a, DC 5263 provides that genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated, warrants a 10 percent rating. Analysis Initially, the Board notes that 38 C.F.R. § 4.25 provides the methodology for determining the compensation payable for multiple disabilities, using a Combined Ratings Table. Here, the current disabilities assigned for the right knee of 10 percent for patellar subluxation, 40 percent for limited extension, and a noncompensable rating for limited flexion combine to 51 percent under the Combined Ratings Table. Under 38 C.F.R. § 4.71a, DC 5256 ankylosis of a knee in flexion between 10 degrees and 20 degrees warrants a 40 percent rating and when there is ankylosis in flexion between 20 degrees and 45 degrees a 50 percent rating is warranted. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). However, here the Veteran does not have any ankylosis of the knee. Also, consideration has been given to the statements of the Veteran's treating private physician as to that physician's estimate of the severity of the service-connected right knee disability. However, although some clinical findings were reported in providing that estimate the physician did not provide a rationale, much less compare any clinical findings, signs or symptoms to VA's Schedule for Rating Disabilities. Accordingly, little probative value may be accorded to that private physician's estimates of the Veteran's overall disability picture stemming from the service-connected right knee disability, particularly since the physician did not indicate in what manner separate ratings could be assigned for, as here, limited flexion, limited extension, and impairment of stability. Also, it is unquestioned that the Veteran now has a postoperative right knee scar due to his multiple surgical procedures. If productive of disability, a separate rating is warranted. See generally Esteban v. Brown, 6 Vet. App. 259, 261 (1994) ("[C]onditions are to be rated separately unless they constitute the 'same disability' or the 'same manifestation' under 38 C.F.R. § 4.14 (1994)" [2012]). In this regard, the Board has considered the Veteran's testimony that the right knee scarring is large and painful and tender to touch. However, the objective clinical evidence shows that following the videoconference, VA examination in 2012 specifically found that the scarring was not painful or unstable and that it involved an area of less than 39 square centimeters. Thus, the Board gives greater weight to the clinical findings and concludes that the residual postoperative scarring does not warrant a separate compensable disability rating. See 38 C.F.R. § 4.115, DCs 7801 - 7805 (2012). In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disability and notes that he and the other person that testified at the videoconference are competent to describe certain symptoms associated with the disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the lay statements and testimony with regard to the matters they are competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected knee disability. A rating in excess of 10 percent for postoperative residuals of a right knee injury with patellar subluxation Here, the current 10 percent rating for right knee patellar subluxation was granted by a May 2013 rating decision, under DC 5257 for slight knee subluxation or instability, effective the date of the March 8, 2013, VA rating examination. In this regard, a higher rating of 20 percent is assignable under DC 5258 for frequent episodes of locking, pain, and joint effusion from a dislocated meniscus (semilunar cartilage). Dr. K. S. stated in June 2012 that following the most recent arthroscopic right knee surgery, the Veteran had such symptoms. However, a careful reading of his statement reflects that the Veteran had debridement of the right medial meniscus due to a degenerative tear. There is otherwise no clinical evidence that the Veteran has ever had any actual dislocation of any meniscus, medial or lateral, at any time. Consequently, a higher rating of 20 percent under DC 5258 is not warranted. On the other hand, a review of the evidence reveals that the May 24, 2012, VA rating examination found that the Veteran did have anterior and posterior right knee laxity, although no lateral or medial laxity or instability. Moreover, despite the Veteran's testimony at the October 2012 videoconference, the evidence weighs against the subjective clinical history related by the Veteran of subluxation because, first, there is no documented recurrent subluxation or ligamentous instability and, second, repeated testing found, to the contrary, that his ligaments (which are what provide stability to a knee) were stable. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted but that a 10 percent rating for the right knee laxity or instability under DC 5257 should be assigned as of the date of the VA examination documenting that clinical finding, i.e., VA examination on May 24, 2012. A rating in excess of 10 percent for postoperative residuals of a right knee injury with limitation of extension prior to May 31, 2012 Here, the Veteran was assigned a 10 percent rating until he was assigned a 100 percent temporary total rating based on convalescence from June 1, 2012, until November 30, 2012, following which a 20 percent rating was assigned for limited right knee extension. Thus, the time period at issue is from one year prior to filing his October 2005 claim for increase until May 31, 2012. To warrant a rating in excess of 10 percent limitation of right knee extension to 15 degrees must be shown. Here, repeated testing of right knee motion prior to May 31, 2012, shows that the Veteran had full extension including on VA rating examinations in February 2006 and May 2007 and on VAOPT evaluations in June and October 2007, and even on VAOPT evaluation in October 2007 extension was limited to only 12 degrees, which in the judgment of the Board does not more closely approximate the required 15 degrees of limited motion needed for a 10 percent rating. Also during this time the evidence is conflicting as to whether he had any abnormality of gait. The April 2007 private report indicates that he had a bilateral antalgic gait and a June 2007 VAOPT reflects his complaint that he limped after walking several blocks. However, the preponderance of VA clinical records shows that during the relevant time frame there was no abnormality of weight-bearing or a limp due to limited right knee extension and he was to be given a cane at the time of the June 2007 VAOPT due to his undocumented complaint of the knee giving way after walking a few blocks. Thus, the Board finds that a rating in excess of 10 percent for postoperative residuals of a right knee injury with limitation of extension prior to May 31, 2012, is not warranted. A rating in excess of 20 percent for postoperative residuals of a right knee injury with limitation of extension from December 1, 2012, to January 27, 2013 The 20 percent rating has been assigned since termination of a convalescent rating, i.e., from December 1, 2012, until the January 28, 2013, report of the Veteran's private treating physician. During this brief time of about two months, the private treating physician reported twice in January 2013, on examinations of the 3rd and the 16th of that month, that extension was limited but to only 10 degrees. The evidence does not otherwise show any significant increase in disability during this time frame which would warrant a rating in excess of 20 percent. A rating excess of 40 percent postoperative residuals of a right knee injury with limitation of extension since January 28, 2013 The 40 percent rating has been assigned effective the date of examination on January 28, 2013, of the Veteran's private treating physician which revealed that he had limitation of extension to 30 degrees. Thereafter, the March 2013 VA rating examination found that extension was limited to 35 degrees. However, for the next higher rating the Veteran would have to have limitation of extension to 45 degrees. Even considering the Veteran's subjective complaints and functional loss, as recorded at the March 2013 VA examination, he continues to have good strength in the right knee and the examination found that even after repetition of motion he had extension which was limited to only 35 degrees. The evidence does not otherwise show any significant increase in disability during this time frame which would warrant a rating in excess of 40 percent. A compensable rating for postoperative residuals of a right knee injury with limitation of flexion Here, the evidence from the time of the February 2006 VA examination until the May 24, 2012, VA rating examination found that the Veteran had flexion to 90 degrees or greater, which is a noncompensable level of disability based on DC 5260 for limited flexion. The May 24, 2012, VA rating examination found that flexion without pain was to 50 degrees and after three repetitions of motion it was to 40 degrees. While this would indicate, based on flexion limited to 50 degrees that a 10 percent rating was warranted and based on flexion limited to 40 degrees a 10 percent rating, it is clear that the evidence shows that the Veteran's range of motion in flexion was much greater than these findings. Specifically, private treatment records of Dr. K. S. show that the Veteran's flexion was to 90 degrees or greater, which is a noncompensable degree of limitation of flexion. However, inasmuch as the addendum to the March 8, 2013, VA rating examination again found that the Veteran's right knee flexion was to 50 degrees, the Board finds that this is a compenable degree of limitation of flexion under DC 5260 and warrants no more than a 10 percent rating under that rating criteria, effective as of the March 8, 2013, VA rating examination. Given that examinations finding of 4/5 strength in flexion (and extension) the disability is not shown to more closely approximate the next higher rating of 20 percent. In reaching the aforementioned determinations, the Board has considered the holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), "when it is not possible to separate the effects of the [service-connected condition and [a] non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition." As applied in this case, the Board has attributed all potentially service-connected symptoms to the right knee. Overall, the disability of the Veteran's right knee is not demonstrated to be of such severity as to warrant higher schedular ratings than those already assigned or granted herein, even when consideration is given to functional impairment due to pain and other factors. The Board has also considered whether staged ratings under Hart, supra., are appropriate for the Veteran's service-connected right knee disorder; however, the Board finds that other than the staged ratings already assigned in this case and as discussed above, his symptomatology has been otherwise stable throughout the appeal. Therefore, assigning further staged ratings is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating in the first instance. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established schedular rating criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, Id. Moreover, comparing the Veteran's current symptoms and disability level to the Rating Schedule, the degree of functional impairment, as discussed herein, is contemplated by the Rating Schedule and the assigned schedular ratings are adequate. By regulation, the ratings assigned must encompass the factors enumerated at 38 C.F.R. §§ 4.40, 4.45, and 4.59 (as listed above) and these encompass a wide rating of signs and symptoms, including pain, loss of motion, painful motion, findings as to strength, coordination and endurance, pain, weakness, atrophy, and crepitation. Of these, pain, painful motion, limited motion, and instability are clearly documented; however, the evidence is unpersuasive as to the presence of many of the other symptoms encompassed under §§ 4.40, 4.45, and 4.59. Indeed, since the Veteran filed his claim in October 2005 he has had arthroscopic surgery, on an outpatient basis, on only one occasion for his right knee. This did not require formal admission and actual hospitalization and the evidence does not otherwise show that there have recent hospitalizations for treatment of the service-connected right knee disability. Moreover, higher schedular ratings are possible; particularly if the Veteran in the future actually develops greater limitation of motion in flexion and extension, or greater instability of the right knee. The scheduler criteria take into account his pain and the functional impairment associated with it, including the consequent decrease in any impaired range of motion, weakness, and incoordination. To the extent that it is asserted, explicitly or implicitly, that consideration must be given to evidence of marked interference with employment, consideration of such evidence is not necessary because the Board decides this matter under the first prong of the Thun analysis. As such, discussion is not required of the second prong of the Thun analysis that requires consideration of other factors, including evidence of marked interference with employment. Lastly, an extraschedular rating may be assigned under 38 C.F.R. § 3.321(b)(1) only for individual service-connected disorders and not for the cumulative effects of multiple service-connected disorders, the latter having been explicitly rejected by the Court. Johnson v. Shinseki, __Vet.App.____ ; 2013 WL 81224810, at *7 (March 27, 2013) (en banc). Thus, the Board may not consider the impact of the Veteran's service-connected left knee disability and in this case the evidence indicates that the Veteran took early retirement due to the combined impact of both service-connected knee disabilities. Thus, no referral for extraschedular consideration is required. 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); Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. When evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. However, caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b) with the criteria for TDIU in 38 C.F.R. § 4.16(b). The Court has recognized that the effect of a service-connected disability are measured differently for purposes of extra-schedular consideration under § 3.321(b)(1) and for purposes of TDIU § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former requires marked interference with employment, the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extra-schedular consideration under § 3.321 may be warranted for disability that present a loss of earning capacity that is less severe than total unemployability). Here, the record shows that the Veteran took early retirement due to his now service-connected disabilities of both knees. However, he has never asserted that he is now unemployed or unemployable due to his service-connected disabilities. Thus, the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. ORDER A rating in excess of 10 percent for postoperative residuals of a right knee injury with patellar subluxation is not warranted but a 10 percent rating is granted effective May 24, 2012. A rating in excess of 10 percent for postoperative residuals of a right knee injury with limitation of extension prior to May 31, 2012, is denied. A rating in excess of 20 percent for postoperative residuals of a right knee injury with limitation of extension from December 1, 2012, to January 27, 2013, is denied. A rating excess of 40 percent postoperative residuals of a right knee injury with limitation of extension since January 28, 2013, is denied. An evaluation of 10 percent but no higher for postoperative residuals of a right knee injury with limitation of flexion is granted from March 8, 2013. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs