Citation Nr: 1334384 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 03-05 362A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals of a left knee injury. 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease (DJD) of the right shoulder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to November 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO, in relevant part, granted service connection and assigned a 20 percent rating for right shoulder DJD and a 10 percent rating for residuals of a left knee injury. In February 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing is of record. By way of an April 2012 determination, the Board remanded the issues to the RO/AMC for further evidentiary development to obtain VA treatment records and administer VA examinations with respect to the issues on appeal. The development was conducted as requested, but the Board remanded the matters again in January 2013 primarily for the purposes of determining whether the Veteran filed for Social Security Administration (SSA) disability benefits, and if so, obtaining such records. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include VA treatment records. The Veteran Benefits Management System does not contain any relevant documents. FINDINGS OF FACT 1. Residuals of a left knee injury is manifest by painful motion. There is no instability, subluxation, or limitation of extension. Remaining functional flexion is better than 45 degrees. 2. Symptoms of right shoulder DJD have most nearly approximated the functional equivalent of limitation of motion of the arm at midway between side and shoulder level. Remaining functional motion is better than 25 degrees from the side. CONCLUSIONS OF LAW 1. Residuals of a left knee injury is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5003 (2012). 2. Right shoulder DJD is 30 percent disabling. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a DCs 5003, 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a) , VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board notes that the claims for a higher initial evaluation for a left knee disability and right shoulder disability in this case arises from the Veteran's disagreement with ratings assigned in connection with the grant of service connection for these disabilities. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to these claims is unnecessary. In any event, preadjudication VCAA notice was provided by the RO in August 2001. The Veteran later received a Dingess-compliant notice letter in March 2006. In addition, during the February 2012 Board hearing, the VLJ clarified the issues on appeal. The VLJ asked questions to ascertain the current state of the Veteran's service-connected left knee and right shoulder disabilities, and the VLJ identified gaps in the evidentiary record and identified areas where further development may be necessary. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records. See 38 U.S.C.A. § 5103A(b). Further evidentiary development was sought through Board remand directives in April 2012 and January 2013, to include obtaining recent VA treatment records and initiating a request for SSA records. In February 2013, the SSA National Records Center notified the AMC that such records were unavailable because they were destroyed. In March 2013, the Veteran was notified of the negative response from SSA and was encouraged to send copies of such records should he have any. In addition, the Veteran was also afforded multiple VA examinations throughout the course of the appeal, including a post-remand VA examination in May 2012. Moreover, the Board finds these examinations are adequate for rating purposes and the May 2012 examination substantially complied with the Board's remand instructions, because after a review of the record on appeal and an examination of the claimant, the examiners provided detailed findings as to the severity of his left knee and right shoulder disabilities that allows VA to rate it under all applicable rating criteria. See 38 U.S.C.A. § 5103A(d) ; See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for a higher initial evaluation for the left knee disability and right shoulder disability are ready to be considered on the merits. In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file, to include Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As discussed below, the disabilities have not significantly changed and uniform evaluations are warranted. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Left Knee Disability Evaluation The Veteran's left knee disability is currently rated under 38 C.F.R. § 4.71a, DC 5010, applicable to traumatic arthritis, which instructs to rate as DC 5003, degenerative arthritis. Under DC 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a 10 percent rating is warranted for objectively confirmed limitation of motion. See 38 C.F.R. § 4.59 (recognizing painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). Regardless of the precise basis of the RO's rating in this case, the Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. This is particularly true of disabilities of the knee. DCs 5260 and 5261 are applicable to limitation of flexion and extension of the knee and leg. Under DC 5260, limitation of flexion of the leg to 60 degrees warrants a noncompensable rating. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Under DC 5261, limitation of extension of the leg to 5 degrees warrants a noncompensable rating. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. Standard knee range of motion is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71a, Plate II. Additionally, VA's General Counsel has issued two opinions indicating that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998). In VAOPGCPREC 9-98, VA's General Counsel found that limitation of motion is a relevant consideration under DC 5259. VA's General Counsel has also found that separate ratings may be assigned under DCs 5260 and 5261, where there is compensable limitation of flexion and extension. See VAOPGCPREC 9-2004 (2004). Moreover, DCs 5256 and 5262 provide for higher ratings for ankylosis and impairment of the tibia and fibula, respectively. DC 5258 provides for a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. DC 5263 provides for a 10 percent rating for genu recurvatum. The Board has considered the entire evidence of record under the laws and regulations set forth above and concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for the residuals of his left knee injury, or left knee disability, currently rated under DC 5010. Service treatment records show that the Veteran sustained an injury to his left knee in service in 1993 and underwent patellar tendon repair surgery. He was treated and diagnosed with mild resolved patella subluxation and patella ligament strain. Treatments were on and off, and he was treated again in 1994 for continued pain in his left knee, which he was later found to have left patellar grinding and was placed on profile for six weeks. The Veteran filed his claim for service connection for his left knee disability in January 2001. He was afforded a VA examination in October 2001, during which he complained of pain, stiffness, swelling and locking of his left knee with constant pain. He stated that he does not take any medications to alleviate the pain. Any increased activity and changes in the weather precipitated the pain and he found that ice, rest, and elevation would relieve it. He did not use any devices to assist with ambulation. The examiner noted no history of dislocation, subluxation or inflammatory arthritis. The Veteran's daily life is affected in that he has increased pain and decreased activity secondary to his knee pain. Range of motion studies revealed that he had flexion to 90 degrees without pain and 120 degree with pain. The Veteran had no more range of motion with active and passive range of motion than 120 degrees. The Veteran had 0 degrees of extension without pain. The examiner remarked that the joint capsule appeared to be intact and there was no obvious laxity of the anterior or posterior cruciate ligaments on evaluation. MRI studies were conducted and results showed small joint effusion (small Baker cyst), remote strain of the medial collateral ligament, and mild meniscal degeneration without overt tear. Cruciate ligaments were within normal limits and the tendons of the extensor mechanism appeared grossly intact. A May 2002 VA treatment record shows that the Veteran sought an evaluation for his left knee for purposes of an SSA application. The Veteran denied any active left knee problem. Upon physical examination, the left knee showed no signs of inflammations, no joint instability, and no crepitations. Additional 2002 VA treatment notes indicate that the Veteran complained of left knee pain in general. In a March 2003 statement, the Veteran asserted that his left knee caused much pain and discomfort when walking and kneeling, and he has felt his left knee "go numb." The Veteran underwent another VA examination in July 2003 for an evaluation for his left knee disability. He reported severe pain in the back of the knee and tingling and weakness from the knee down, to increase with activity. He reported that the knee pops and cracks, and occasionally locks. He reported pain with changes in weather as well as painful range of motion. He averred that he has increased pain with increased activity and that the knee condition limits such activity. He currently did not use a brace, cane, or any corrective devices. He denied any dislocation or recurrent subluxation of the knee. Upon physical examination, there was no tenderness to palpation over the patella, although posterior tenderness was noted. Range of motion tests revealed flexion to 140 degrees with pain and extension to 0 degrees. There was no evidence of spasms or ligamentous laxity. The Lachman and McMurray tests were negative. Strength was 5/5 and equal bilaterally in the lower extremities. MRI studies were conducted and results showed minor degeneration of the posterior horn of the medial meniscus, remote strain of the medial collateral ligament, and small amount of physiologic joint fluid, but the left knee was otherwise normal. No significant joint effusion was identified and joint spaces were normally maintained. The Veteran was again evaluated in January 2006 by a VA examiner, where the Veteran reported having ongoing problems with knee pain rated 2 or 3 out of 10 in severity, associated with stiffness, weakness, swelling, fatigability, occasional instability, and lack of endurance. He has had no particular treatment for the knee. He reported flare-ups of increased pain in which his pain reached 5 or 6 out of 10 in intensity and has lasted for up to a couple of days. The flare-ups were precipitated by going up and down stairs, weather changes, and was somewhat alleviated by over-the-counter painkillers, ice application, and knee elevation. He reported that he tried to minimize walking due to the potential flare-ups. He denied any dislocation or current subluxation of the knee joint, although he reported occasional locking up of the knee. At this point, he stated that because of his knee disability, he was unemployed as he was functionally limited with his physical activities. Upon physical examination, the left knee revealed some crepitus upon palpation of the patella as well as tenderness to palpation. He was noted to have slightly decreased range of motion of the knee with flexion to 120 degrees with pain and extension to 0 degrees. There was no additional decreased range of motion with repetitive testing of the knee nor was there ligamentous laxity. Lachman and McMurray tests were negative. The VA examiner's assessment was left knee sprain, status post left knee injury with evidence of prior trauma on X-ray. VA treatment notes in January 2012 show rehabilitative treatment for the Veteran's left knee disability. He asserted that he felt knee pain in the squatting position (typically while working) and complained of radiating pain down the anterior part. At his February 2012 Board hearing, the Veteran testified that he has been wearing a knee brace for the past 5 months and that he has instability in his left knee, which prompted him to seek additional treatment. He described an incident where he fell because he felt his knee give out. He stated that he was limited in physical activity and he at times took over-the-counter medication to alleviate the pain. A March 2012 treatment note showed an impression of arthralgia of the left knee. A notation was made that left knee X-ray studies were normal. The Veteran was observed to have left knee pain with the McMurray test, but negative for Lachman; no effusion was present. May 2012 VA treatment notes reveal that the Veteran was consistently undergoing physical therapy treatment for his left knee disability. Physician's notes reveal a possible meniscus tear in the left knee. Physical therapist's notes revealed that the Veteran's pain was moderate, and generally, pain was present with increased activity. Lower left extremity strength tests revealed 4/5 and noted improvement, but the Veteran continued to report instability in his left knee. Physical examination findings revealed tenderness over the anterior lateral patellar region and increased pain felt with the McMurray test, but had negative results for the anterior drawer test, and negative laxity; no effusion was present. Left knee flexion was to 90 degrees and arthralgia of the left knee was noted. Pursuant to a Board remand, the Veteran was afforded another VA examination in May 2012. The Veteran reported no interval change in the condition although the knee felt weak at times and he occasionally has fallen. He noted daily sharp or dull pain precipitated by walking. The Veteran did not report any flare-ups. Range of motion studies revealed left knee flexion to 115 degrees without pain, and extension to 0 degrees without pain. He was able to perform repetitive-use testing with three repetitions and demonstrated no additional limitation in motion following such testing. However, the examiner noted that he had functional loss and/or functional impairment of the left knee described as less movement than normal. He also had tenderness and pain to palpation of his left knee. Muscle strength tests were 5/5 bilaterally for flexion and extension. Joint stability tests revealed all normal results, and there was no evidence of patellar subluxation or dislocation. The Veteran did not have any tibial and/or fibular impairment. The Veteran had a left knee scar but it was not painful. He used a neoprene sleeve on the left knee as a corrective device. The examiner noted that X-ray studies were conducted in March 2012 and there was no degenerative or traumatic arthritis present, no evidence of patellar subluxation, and bone density was normal. There was no acute fracture or dislocation, thus no bony abnormality was present. The examiner indicated that the Veteran's knee disability does not impact his ability to work as the Veteran is a truck driver who is able to accomplish his work, albeit with pain. A notation was made that MRI studies were ordered and conducted. An addendum was added in February 2013 reviewing the MRI studies conducted in May 2012 and comparing results to the previous March 2012 MRI studies. The May 2012 MRI studies showed that left knee MRI results were unremarkable, or within normal limits. A July 2012 VA treatment note reveals that the Veteran felt improvement with his left knee disability with physical therapy. He stated that his left knee felt twice as strong as it did before, but reported occasional pain and paresthesias in the left knee, but not as bad as before. There was negative laxity or effusion and mild pain noted upon range of motion. A September 2012 treatment note indicated that the Veteran still felt knee pain, but it was not newly identified pain. The pertinent evidence of record, as summarized above, shows that the Veteran's left knee disability more closely approximates his current 10 percent rating under DC 5010, which was assigned on the basis of painful limitation of motion, which has been present throughout the entire period of appeal. The Veteran has not demonstrated on this record, at any point, degrees in flexion in his left knee that meets the 20 percent criteria. At the worst, the Veteran has demonstrated 90 degrees in flexion. See supra, May 2012 VA treatment notes. The current evaluation already contemplates periarticular pathology productive of painful motion. It is also consistent with limitation of flexion to 45 degrees. See 38 C.F.R. § 4.59 and DC 5260. In order to warrant a higher evaluation there must be the functional equivalent of limitation of flexion to 30 degrees, which is not shown on this record. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.7. As separate evaluations may be assigned for compensable limitation of extension, subluxation or instability, the Board has carefully considered all of the applicable Diagnostic Codes with respect to the knee joint. At this juncture, the Board notes that as the evidence does not show anklyosis of the left knee (DC 5256), impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263), a separation evaluation under these codes is not warranted. Under DC 5261 (limitation of extension), in order to receive a separate compensable evaluation, the Veteran must demonstrate extension limited to 10 degrees. The Veteran has not demonstrated on this record, at any point, degrees of extension in his left knee that is worse than 0 degrees. See supra, May 2012 VA treatment notes. Thus, a separate compensable evaluation under DC 5261 is not warranted. The Veteran has consistently described pain upon movement and the record shows consistent reports of pain, anywhere from mild to moderate levels. However, the fact that a veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant the a higher rating under the diagnostic codes providing ratings for limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted. In that regard, the evidence does not reflect that pain or any of the other DeLuca factors resulted in limitation of motion that more nearly approximated the next higher rating of 20 percent (flexion limited to 30 degrees), warranting a higher rating under DC 5260. In VA examinations in July 2003, January 2006, and May 2012, the Veteran demonstrated that he was able to perform repetitive-use testing and showed no additional limitation of motion following such testing. Any additional functional loss due to pain and weakness in the left knee joint is contemplated in the current 10 percent rating. Furthermore, there is no lay or medical evidence of limitation of extension, other than an unconfirmed report of locking. The Board considered the Veteran's statements and testimony as to instability in his left knee in conjunction with the objective medical findings of record. See DC 5257, Recurrent Subluxation or Lateral Instability. A 10 percent rating requires a finding of slight recurrent subluxation or lateral instability. A 20 percent rating requires a finding of moderate recurrent subluxation or lateral instability. None of these were shown upon objective examinations of record. Furthermore, prior to 2012, the Veteran has actively denied any problems related to subluxation or instability in his left knee, as indicated in various examination reports, see supra. Although the Board finds that the Veteran's assertions as to his knee feeling unstable are competent statements, the Board is persuaded by the results of various joint stability tests, to include the Lachman test and posterior drawer test. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). On this record, results of such joint stability tests were normal and did not show any objective findings of instability in the left knee. Upon physical examination, particularly in May 2012, no recurrent patellar subluxation or dislocation was found. The Board notes that although the Veteran indicated increased pain felt during the performance of the McMurray test in the earlier half of 2012, there were no objective findings of instability to support his assertions. In fact, physical therapy notes suggest that the Veteran felt that his knee was getting stronger through rehabilitation. In sum, the medical evidence, as prepared by skilled examiners, is more probative and credible than the lay evidence. Lastly, during the appeal, one examination disclosed a small joint effusion. Furthermore, an MRI showed minor degeneration of the horn of the meniscus. Therefore, the Board has considered the provisions of DC 5258 for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion. Although he has complained of locking, there is no indication that he has frequent episodes of locking. Furthermore, there is no evidence of dislocated parts of the meniscus/cartilage. Thus, a separate evaluation under DC 5258 is not warranted. As such, the Board finds that the evidence of record warrants the current 10 percent disability rating for painful motion, rated under DC 5010. The preponderance of the evidence is against assignment of a higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extraschedular consideration is addressed in this decision, infra. Right Shoulder Disability Evaluation The Veteran's right shoulder DJD is evaluated under 38 C.F.R. § 4.71a, DC 5003-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003, applicable to degenerative arthritis, provides that degenerative arthritis is rated on the basis of limitation of motion under appropriate diagnostic codes for the specific joint or joints involved, but that when limitation of motion of the specific joint is noncompensable, a 10 percent rating is warranted for limitation of motion of the joint. DC 5201 is the diagnostic code applicable to the shoulder joint, and provides that, with regard to the major joint, limitation of motion of the arm at the shoulder level warrants a 20 percent rating. Limitation of motion to midway between the side and shoulder level warrants a 30 percent rating. Limitation of motion to 25 degrees from the side warrants a 40 percent rating. The Veteran is right handed (see Board Hearing Transcript page 6), and his right shoulder is therefore the major joint. He is currently rated at 20 percent for the entire period of appeal based on limitation of motion at shoulder level. Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is entitled to a increased initial disability evaluation of 30 percent, but no higher, for his service-connected right shoulder DJD. As will be explained infra, the applicable diagnostic code for this disability evaluation is DC 5201, limitation of motion of the arm. Service treatment records show that the Veteran was treated for right shoulder pain during service, to include physical therapy, medications, and injections. An MRI conducted in 1995 showed degenerative changes to the right rotator cuff tear and was later diagnosed to have right shoulder impingement syndrome shortly before separation from service. The Veteran filed his claim for service connection for right shoulder DJD in January 2001. An August 2001 VA treatment note indicates that the Veteran had a capsular disruption in the right shoulder in service but surgery was not conducted. As a result, he had to limit his employment. An October 2001 VA treatment note indicates that the Veteran complained of grinding, clicking, and pain in his right shoulder which was aggravated when lifting things overhead or when laying on his shoulder. The pain inhibited normal daily activities to some degree. X-ray or MRI studies were not conducted at this point. The physician's assistant indicated that the right shoulder definitely had limited range of motion as he had trouble reaching behind his back, but there was no evidence of muscle atrophy or loss of sensation. The Veteran was afforded a VA examination in October 2001 during which he complained of constant pain and stiffness in the right shoulder. Weather changes and increased activity precipitated the pain and ice relieved it. Range of motion studies revealed 180 degrees of flexion and 50 degrees of extension. He only had 90 degrees of abduction without pain and 110 degrees with pain. He had 50 degrees of adduction and 90 degrees of internal and external rotation. The joint capsule was intact. MRI studies were conducted and results were translated as rotator cuff tendonitis, degenerative changes of the right shoulder, and a right shoulder labral tear. In October 2001, a vocational rehabilitation specialist noted that the Veteran was still capable of gainful employment despite his current limitations due to his disabilities, but that his current physical limitations should not keep him from being employed. An April 2002 orthopedic consult report indicates that the Veteran had right shoulder forward flexion "0-1", internal rotation to the belt line, external rotation to 45 degrees, strength was 4/5 on the Tensils test, positive at elbow, negative at wrist. The physician reviewed the imaging studies and assessed moderate shoulder capsulitis of the right shoulder. In January 2002, the Veteran complained of a burning type of sensation and problem with the scapular area of the right shoulder. The physician diagnosed him with tendonitis of the levator scapulae muscle of the right shoulder. That same month, the Veteran continued to complain of pain in his right shoulder and claimed that the cortisone shots were ineffective. He also experienced muscle spasms in the right shoulder. Upon examination by a physician, he demonstrated decreased hand grasp and pincer strength. He was able to abduct his shoulder to about 50 to 60 degrees, but had pain with raising the arm overhead. There was much grinding and clicking of the right shoulder joint with range of motion, and the right shoulder appeared very tender. The physician diagnosed degenerative disease of the right shoulder. The Veteran continued to seek VA treatment for right shoulder pain in 2002. In April 2002, MRI studies showed degenerative changes to the right rotator cuff. Nerve conduction studies were performed because of the Veteran's consistent complaints of cervical radiculopathy from his neck to right shoulder. Results showed mild carpel tunnel on the right side. The Board notes that the RO previously considered the issue of service connection for right side nerve damage secondary to the service-connected right shoulder disability, but the claim was denied by way of an August 2013 RO rating decision. A July 2002 VA treatment note indicates increased restrictions in right shoulder extension. The Veteran underwent a VA examination in November 2002 in connection with his carpel tunnel and neck condition. The right shoulder was evaluated and the Veteran reported daily pain in his shoulder with flare-ups and restrictions on daily activity. He reported daily pain of 3 to 4 out of 10 in intensity but during a flare-up it increased to 5 or 8 out of 10 occurring 3 to 5 times per week and lasting for about 24 hours. Examination of the right shoulder revealed some tenderness to palpation in the joint space, no erythema or edema. The Veteran had flexion at the right shoulder to 150 degrees, extension to 30 degrees, abduction to 150 degrees, adduction to 50 degrees, internal rotation to 80 degrees, and external rotation to 80 degrees. MRI studies were administered and showed that he had right shoulder DJD, rotator cuff tear, and anterior labral tear. In his March 2003 statement, the Veteran indicated that his right shoulder DJD with labral tear was very painful most of the time due to limited motion and lack of endurance which has affected every job he performs. The Veteran was afforded a VA examination in January 2006, during which he reported ongoing problems with right shoulder pain and rated the pain 3 out of 10 in severity, associated with fatigability, lack of endurance or decreased range of motion of his shoulder. The Veteran reported worsening of his shoulder condition upon taking pain medication. He reported flare-ups that occurred frequently in which his pain could reach as high as 6 or 7 out of 10 in severity and may last anywhere from one hour to 3 or 4 days. His flare-ups were precipitated by lying on his side and strenuous activity. He was unable to move his joints without pain during the flare-ups. He denied any dislocation or current subluxation of the shoulder joint, although he reported a popping sensation. He stated that he was previously employed as a truck driver, but has declined employment because of this condition. He reported not being able to lift more than 20 pounds and not being able to reach overhead. He could not partake in recreational activities. Upon physical examination, the Veteran's right shoulder revealed tenderness to palpation of the anterior aspect of the shoulder joint. He had decreased range of motion of the shoulder joint with flexion to 150 degrees with pain noted at 120 degrees, extension to 30 degrees with pain, abduction to 120 degrees with pain noted at 90 degrees, adduction to 40 degrees with pain, and internal and external rotation to 90 degrees with pain. There was additional decreased range of motion by 10 degrees with repetitive-use testing of the right shoulder joint. During the 2012 Board hearing, the Veteran testified that he was more functionally restricted with respect to his right shoulder. He stated that within the last year, he had noticed a visible physical change associated with his right shoulder and that he became less reliant on painkillers. The Veteran indicated that he was right-handed and currently employed as a truck driver. The undersigned VLJ noted that the Veteran flinched when raising his right hand to be sworn in. The Veteran stated that he experienced pain when he moved his arm up. He attempted a right arm raise to shoulder level. The Veteran performed the movement and stopped when he experienced pain and tightness. The VLJ estimated that it was about 20 degrees below shoulder level. The Veteran's representative estimated 20 or 30 degrees below shoulder level. He asserted that he has to make adjustments when working (driving a truck) and would drive with his left hand to avoid feeling discomfort or pain aggravating the right shoulder. The Veteran was afforded a VA examination in May 2012 pursuant to the Board remand. The Veteran did not report any flare-ups. DJD of the right shoulder and labral tear were diagnosed. Range of motion studies revealed right shoulder flexion to 90 degrees with no objective evidence of painful motion and right shoulder abduction to 80 degrees without evidence of painful motion. There was no additional limitation in range of motion of the right shoulder/arm following repetitive-use testing. However, the examiner noted functional loss bilaterally characterized as less movement than normal. There was localized tenderness or pain on palpation of the right shoulder joint. Muscle strength tests revealed active movement against some resistance for the shoulder abduction. Forward flexion muscle strength testing was normal. There was no evidence of ankylosis or any impairment of the clavicle or scapula. Specific tests for rotator cuff conditions were performed and results generally indicated pain upon rotation or weakness. The examiner commented that the Veteran's right shoulder condition does not affect his ability to work as he was able to accomplish all of his work related responsibilities. The Veteran used his left arm/shoulder more than the right. He stated that he uses his right shoulder as a "guide." September 2012 X-ray studies show that the glenohumeral and AC joint of the right shoulder were in good alignment with no fractures or destructive lesions; normal impression. An October 2012 orthopedic consult note indicates that the Veteran has had multiple courses of physical therapy to the right shoulder without improvement. Over-the-counter painkillers did not provide any real benefit to him and he ceased taking narcotic pain medication. An examination of the right shoulder showed pain on range of motion with anterior trigger point. A February 2013 treatment note indicates that the Veteran returned to receiving cortisone shots in his right shoulder. March 2013 occupational therapy notes consistently indicate a primary diagnosis of right shoulder tendonitis. The Veteran reported pain that was 4 out of 10 in intensity. Range of motion studies revealed right shoulder flexion to 85 degrees, abduction to 80 degrees, extension to 53 degrees, all with pain, and external rotation to 75 degrees in the scapular plane and small internal rotation in the scapular plane. Strength tests revealed 2/5 upon both flexion and abduction, 4/5 on extension and external rotation, and 3/5 upon internal rotation. Based upon the evidence of record, to include the Veteran's credible testimony as to the functional limitations of his right shoulder and assertions of pain upon movement, and based upon the observations made on record during the 2012 Board hearing, the Board finds that the Veteran's right shoulder disability more nearly approximates the disability picture contemplated by the 30 percent rating -- limitation of motion restricted to midway between side and shoulder level. See 38 C.F.R. § 4.7. In arriving at this conclusion, the Board considered the DeLuca factors in conjunction with the Veteran's testimony as to limited motion with restriction below shoulder level, and found evidence of functional impairment which nearly approximates the functional restrictions contemplated in the 30 percent rating. As limitation of the right arm to 25 degrees from the side has not been demonstrated at any point during the period of appeal, a higher rating is not warranted at any time. See DC 5201. Additionally, given that the Veteran is not shown to have experienced ankylosis or impairment of the humerus, clavicle or scapula, a higher rating under alternative diagnostic criteria contemplating shoulder disabilities is not warranted at any time. See DCs 5200, 5202, 5203. For a disability evaluation higher than 30 percent, the Board finds the objective medical evidence, discussed above, to be more probative than the Veteran's lay assertions in determining that his right shoulder DJD does not more nearly approximate the criteria for a rating in excess of 30 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has specifically considered the appellant's assertions, as previously stated. However, the 30 percent evaluation already contemplates functional restriction, pain on motion and the estimated 20 to 30 degrees below shoulder level (from the Board hearing), in conjunction with objective findings, which at worst show 85 degrees for flexion and 80 degrees for abduction (see March 2013 VA treatment notes). Thus, the productive symptomatology more nearly approximates the functional equivalent of limitation of motion of the right arm midway between the side and shoulder level. The evidence does not reflect that his right shoulder is functionally limited to 25 degrees from the side (20 to 30 degrees below shoulder level is still closer to shoulder level than 45 degrees). In fact, upon objective testing, the Veteran's right shoulder has most recently been observed to have much greater range of motion and examiners have found no additional functional limitations in range of motion studies. For all the foregoing reasons, the Board finds that a 30 percent, but no higher, ratings for right shoulder DJD is warranted throughout the appeal period, but that a rating in excess of 30 percent is not warranted at any time pertinent to this appeal. The Board has applied the benefit-of-the-doubt doctrine in determining that the criteria for 30 percent rating is met, but finds that the preponderance of the evidence is against assignment of a higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extraschedular Considerations As to consideration of referral for an extraschedular rating for both issues on appeal, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above with respect to both left knee and right shoulder disabilities reflects that the symptoms of such disabilities are fully contemplated by the applicable rating criteria, i.e., DC 5010, applicable to the Veteran's left knee disability and DC 5003-5201 (limitation of motion), application to the right shoulder DJD. As discussed above, the relevant and applicable diagnostic codes contemplate the relevant symptoms relating to the aspects of the Veteran's left knee and right shoulder disabilities under consideration, specifically limitation of motion to include DeLuca factors of painful range of motion. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that the left knee disability or the right shoulder disability has caused marked interference with employment, frequent hospitalization, or that the symptoms of this disability have otherwise rendered impractical the application of the regular schedular standards. In fact, the record reflects that the Veteran is currently employed as a truck driver and is able to perform the functions of his job, albeit with some pain. Therefore, referral for consideration of an extraschedular rating for either issue (left knee and right shoulder disabilities) is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER An initial evaluation in excess of 10 percent for residuals of a left knee injury is denied. An initial evaluation of 30 percent for the service-connected degenerative joint disease of the right shoulder is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs