Citation Nr: 1334414 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-02 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for depressive disorder for the period prior to August 12, 2010, and in excess of 70 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for limitation of motion associated with a left knee disability. 3. Entitlement to a rating in excess of 10 percent for instability associated with a left knee disability. 4. Entitlement to a rating in excess of 10 percent for limitation of motion associated with a right knee disability. 5. Entitlement to a rating in excess of 10 percent for instability associated with a right knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1983 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over these matters has since been transferred to the VA RO in Roanoke, Virginia. These matters were previously before the Board in June 2010, at which time the Board remanded the claims for additional development of the evidence of record. The Board errs as a matter of law when it fails to ensure compliance with remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that there has been substantial compliance with the remand instructions. Dyment v. West, 13 Vet. App. 141 (1999). While this case was on remand, an August 2012 rating decision of the VA RO in Roanoke, Virginia awarded a higher 70 percent rating for depressive disorder, effective August 12, 2010, and awarded separate ratings for the Veteran's right knee instability and left knee arthritis. As the Veteran's original appeal sought appropriate compensation for his bilateral knee disability generally, these issues remain in appellate status because these ratings do not represent the highest possible benefit for either the knees or the Veteran's depressive disorder, as will be discussed in further detail below. AB v. Brown, 6 Vet. App. 35, 38 (1993) . FINDINGS OF FACT 1. In an April 2013 written statement, before the promulgation of a decision in this appeal, the Veteran notified VA that he wished to withdraw his appeal of the claim of entitlement to an increased disability rating for depression. 2. The Veteran's left knee disability is manifested by a range of motion limited by pain and weakness to no worse than 60 degrees of flexion and 0 degrees of extension, no x-ray evidence of arthritis, and no clinical evidence showing moderate instability. 3. The Veteran's right knee disability is manifested by a range of motion limited by pain and weakness to no worse than 70 degrees of flexion and 0 degrees of extension, x-ray evidence of arthritis, but no clinical evidence showing moderate instability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the issue of entitlement to a disability rating in excess of 30 percent for depressive disorder for the period prior to August 12, 2010, and in excess of 70 percent thereafter have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for a rating in excess of 10 percent for a left knee disability based on limitation of motion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 3. The criteria for a rating in excess of 10 percent for a left knee disability based on instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259 (2012). 4. The criteria for a rating in excess of 10 percent for a right knee disability based on limitation of motion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 5. The criteria for a rating in excess of 10 percent for a right knee disability based on instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5258, 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist Veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the instant case, correspondence dated November 2005, April 2006, December 2006, and August 2008 provided the Veteran notice with respect to all of these elements. The Veteran has additionally received a number of re-adjudications of his claims since the time of these VCAA notice letters, most recently in a March 2013 supplemental statement of the case. The Board finds that all notice required by the VCAA and implementing regulations was furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records, VA medical treatment records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. Additionally, the Veteran has been provided with VA examinations, and the Board observes that the VA examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA opinions are therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified any additional records that should be obtained prior to a Board decision. In January 2007, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at a local VA office. In February 2007, the Veteran clarified that he wished to appear before a VLJ at a videoconference hearing. In February 2009, the Veteran's representative clarified that the Veteran only wished to appear at a hearing before a VLJ if he were unsatisfied with the outcome of his hearing before a Decision Review Officer (DRO). The Veteran appeared at a hearing before a DRO in April 2009, and a transcript of the hearing is of record. The Veteran did not subsequently express dissatisfaction with his DRO hearing. Under the circumstances, the Board considers the request for a hearing before a VLJ to have been withdrawn. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Withdrawn Claim In an April 2013 written statement, the Veteran stated that he wanted to withdraw the appeal of his claim of entitlement to an increased disability rating for depression. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012). Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204(c) (2012). Appeal withdrawals must be in writing and must include the name of the Veteran, the applicable claim number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b) (2012); Hanson v. Brown, 9 Vet. App. 29 (1996). When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to the determinations that had been previously appealed. Therefore, dismissal of the pending appeal is appropriate. 38 U.S.C.A. § 7105(d) (West 2002). The Veteran's request for a withdrawal is in writing, and it includes the Veteran's name and claim number. As of the date of the letter, the Board had not yet issued a final decision on the Veteran's claim. As the Veteran has withdrawn his appeal as to the issue of entitlement to a disability rating in excess of 30 percent for depressive disorder for the period prior to August 12, 2010, and in excess of 70 percent thereafter, there remains no allegation of errors of fact or law for appellate consideration concerning the issue. The Board, therefore, has no jurisdiction to review the Veteran's claim of entitlement to a disability rating in excess of 30 percent for depressive disorder for the period prior to August 12, 2010, and in excess of 70 percent thereafter, and the issue is dismissed. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When there is a question as to which of two ratings shall be applied, the higher ratings will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2012); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2012). When limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion. That rating cannot be combined with a limitation of motion rating of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). Separate evaluations may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both arthritis and instability does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Increased Rating Based on Limitation of Motion The Veteran underwent a VA examination in December 2005, at which time the Veteran complained of constant pain in the left knee and intermittent pain in the right knee. The Veteran's knee pain flared with changes in the weather, walking, and climbing steps. Knee pain prevented the Veteran from running. Upon physical examination, the examiner observed that the Veteran's gait was abnormal. Examination of the right knee showed no warmth or effusion, but there was localized discomfort to palpation of the margins of the patella. The Veteran's right knee had a range of motion from 0 to 80 degrees, at which point the Veteran complained of right knee discomfort. The left knee was warmer than the right knee, but such warmth was consistent with the sleeve-type brace that the Veteran wore. Minimal effusion was present, but there was discomfort to palpation over the margins of the patella. The Veteran had a range of motion in the left knee from 0 to 70 degrees, at which point the Veteran complained of pain. With repetitive use of both knees, the Veteran had increased pain, but no fatigue, weakness, lack of endurance, or change in the range of motion. The examiner diagnosed the Veteran with bilateral chondromalacia of the patella, with the left greater than the right. X-ray of the right knee showed mild degenerative joint disease. In January 2006 and June 2006, the Veteran denied knee swelling, but he felt that his knees were warm. The Veteran's pain worsened with activity and when going up stairs. In December 2007, the Veteran reported experiencing increasing pain in his knees. The Veteran had no obvious weakness in the knee. The Veteran denied having had steroid injections, and the Veteran denied knee swelling, but he indicated that his knees sometimes felt warm. The clinician noted no effusion or warmth but observed mild tenderness on the medial joint space. The Veteran had a full range of motion. The clinician diagnosed the Veteran with underlying chondromalacia with mild osteoarthritis. A December 2007 x-ray examination of the Veteran's left knee showed no arthritis. The Veteran underwent a VA examination in September 2008. The Veteran complained of moderate to severe constant pain in both knees. The Veteran had a moderately slow antalgic gait, and he used both a cane and a left knee brace. The Veteran had difficulty with prolonged standing, walking for more than a half-hour, walking up and down steps, climbing, and squatting. The Veteran had a bilateral range of motion from 0 to 80 degrees, with pain noted at 70 degrees. Repetitive motion testing did not result in additional loss of motion as a result of pain, fatigue, weakness, or lack of endurance. The Veteran denied experiencing flare-ups of his knee condition. No swelling was noted, and there was no crepitus on palpation. There was moderate tenderness of both knees. The examiner diagnosed the Veteran with a bilateral knee strain. In April 2010, the Veteran reported increased pain with bending, stooping, stairs, and walking. A VA clinician noted that the Veteran's left knee had a full range of motion with mild crepitus, but no effusion. In May 2010, a VA clinician noted the Veteran's complaints of having weak knees. The Veteran underwent a VA examination in July 2010, at which time the Veteran complained of pain in his knees that worsened with walking. The Veteran reported increased pain with climbing steps; the Veteran had to use a handrail or cane for support when walking up a steep incline. The Veteran additionally had increased pain in rainy weather and in cold air. The Veteran was able to stand for 15 to 30 minutes at a time, and he was able to walk one-quarter mile. The Veteran intermittently used a cane, and his gait was antalgic. The Veteran's right knee had tenderness and pain at rest. The examiner observed crepitation and clicks or snaps, but no grinding. The bilateral knees had flexion from to 130 degrees and extension to 0 degrees. Objective evidence of pain with motion was noted. Following three repetitions, the Veteran had a range of motion on the left side from 0 to 60 degrees and on the right side from 0 to 70 degrees. There was no joint ankylosis. The examiner noted that a July 2010 x-ray examination found no significant degenerative changes in the knees bilaterally. The examiner diagnosed the Veteran with a bilateral knee strain that would have a mild effect on the Veteran's ability to engage in chores, recreation, and travel, and a moderate effect on his ability to engage in shopping, exercise, and sports. In a March 2011 evaluation for SSA disability purposes, the examiner noted that the Veteran reported a history of chondromalacia patella of unknown etiology. The Veteran reported experiencing pain, stiffness, and weakness. The Veteran's symptoms were exacerbated by climbing stairs, standing, and walking for prolonged periods of time. The Veteran's symptoms improved with the application of heat. The Veteran reported that he typically experienced a 4/10 pain intensity. The Veteran had normal muscle strength. The examiner noted no joint swelling, erythema, effusion, crepitus, or deformity. The Veteran was unable to squat and rise from that position. The Veteran could rise from a sitting position without assistance, and he had some difficulty getting up and down from the examination table. The Veteran had a normal range of motion in both knees. The Veteran underwent a VA examination in May 2012, at which time the examiner diagnosed the Veteran with bilateral patellofemoral syndrome. The Veteran reported experiencing flare-ups that limited his ability to walk, sit, stand, bend, sleep, and drive. The Veteran had right knee flexion to 95 degrees, with pain at 90 degrees. The Veteran had right knee extension to 0 degrees, with pain at 40 degrees. The Veteran had left knee flexion to 100 degrees, with pain at 95 degrees. The Veteran had left knee extension to 0 degrees, with pain at 40 degrees. The Veteran was unable to perform repetitive use testing because of moderate knee pain. The Veteran had functional loss in the form of less movement than normal, weakened movement, and painful movement. The Veteran had tenderness or pain to palpation of the knees bilaterally. The Veteran had normal muscle strength, and he claimed to have experienced shin splints while running. The Veteran regularly used a brace and constantly used a cane. The examiner noted that the right knee had x-ray evidence of arthritis. The Veteran's knee condition limited his ability to bend, stoop, and stand for prolonged time. Turning to an evaluation of this evidence of record, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees. There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2012). With those Diagnostic Codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the Diagnostic Codes that are potentially applicable to the Veteran's left knee limitation of motion disability: Diagnostic Code 5003, applicable to degenerative arthritis; Diagnostic Code 5260, applicable to limitation of flexion of the leg; or Diagnostic Code 5261, applicable to limitation of extension of the leg. 38 C.F.R. § 4.71a (2012). The Board will first evaluate whether a greater rating is available to the Veteran under Diagnostic Codes 5260 and 5261, which are based on limitation of motion of the leg. With regard to right knee flexion, the Veteran consistently demonstrated flexion to 70 degrees or greater. With regard to left knee flexion, the Veteran consistently demonstrated flexion to 60 degrees or greater. Accordingly, with flexion never limited to 45 degrees or fewer, a compensable rating is unavailable to the Veteran on the basis of impairment of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). With regard to bilateral knee extension, the Veteran consistently demonstrated full extension. The Board acknowledges that the Veteran experienced pain at 40 degrees of extension in the bilateral knees at the time of his May 2012 examination. While the Board acknowledges the Veteran's account of pain at 40 degrees of extension, it observes no evidence suggesting that the Veteran's range of motion was in fact functionally limited to 40 degrees of extension as a result of such pain. Accordingly, with extension never limited to 10 degrees or greater, a compensable rating is unavailable to the Veteran's right knee on the basis of impairment of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). While the Board acknowledges that the Veteran's left knee has been awarded a 10 percent evaluation based on limitation of extension, the Board finds that a rating in excess of 10 percent based on limited extension does not apply to the Veteran's left knee. The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2012). VA examiners and clinicians have noted the Veteran's complaints such as pain and weakness, and the Board has taken those complaints into consideration in its above discussion. The Board finds that the evidence does not support a finding that the Veteran's functional loss causes disability beyond the above-discussed range of motion testing. While the Board accepts the credible contentions of the Veteran that his bilateral knee disability causes him to experience significant pain, the Board has taken that into account in its consideration of the range of motion of the Veteran's knees. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss beyond the functional limitations discussed above. With regard to a higher rating based on arthritis, when x-ray evidence of degenerative arthritis is presented but the associated loss of range of motion is noncompensable, a 10 percent disability rating is warranted under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The evidence of record indeed indicates that the Veteran is in receipt of a 10 percent rating of his right knee disability throughout the period on appeal based on arthritis. The Diagnostic Code applicable to degenerative arthritis does not provide for a rating in excess of 10 percent with the involvement of a single major joint. A greater increased rating based on arthritis is accordingly unavailable to the Veteran's right knee. A separate 10 percent evaluation under Diagnostic Code 5003 is unavailable for the Veteran's left knee both because there is no x-ray evidence of arthritis of the left knee and because the Veteran is already in receipt of a 10 percent evaluation under Diagnostic Code 5261 acknowledging the Veteran's painful motion. A separate rating for the Veteran's left knee under Diagnostic Code 5003 would thus similarly contemplate impaired motion and constitute impermissible pyramiding. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for limitation of motion of either the left or right knees. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Based on Instability A separate rating may be assigned for knee instability. The Veteran is in receipt of 10 percent disability ratings for both the left and right knees under Diagnostic Code 5257. That Diagnostic Code provides that recurrent subluxation or lateral instability is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Clinicians' use of terms such as "moderate" and "severe," although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The Veteran underwent a VA examination in December 2005, at which time the Veteran denied having any buckling of the left knee because he wore a left knee brace. The Veteran indicated that the left knee occasionally popped and occasionally locked. The Veteran had no locking or true buckling of the right knee. Lachman's and McMurray's tests were negative on the right. There was no right knee instability and no right knee crepitation with the passive range of motion. There was no left knee joint instability. Lachman's and McMurray's tests were negative on the right. In January 2006 and June 2006, the Veteran described knee locking, but he denied the knee going out. The Veteran had fallen on two occasions as a result of his knee locking. A VA clinician noted that the Veteran had hypermobile patellae and a patellar grind, with the left greater than the right. In December 2007, the Veteran reported experiencing popping, giving, and catching in both knees, with the left knee worse than the right. The Veteran indicated that his knees locked but did not give out. The Veteran indicated that he had fallen on two occasions as a result of his knee locking. The Veteran underwent a VA examination in September 2008. There was no instability noted bilaterally. There was a negative drawer sign and a negative McMurray sign. In April 2010, a VA clinician noted the Veteran's left knee had no ligamentous instability, a negative McMurray's sign, and a negative patellar compression test. The clinician found no evidence of ligamentous instability or significant meniscal pathology. In a separate April 2010 treatment note, the Veteran reported experiencing buckling in the knee approximately once weekly. In May 2010, a VA clinician noted that the Veteran wore a knee brace on his left knee. The Veteran underwent a VA examination in July 2010, at which time the examiner noted no instability, patellar abnormality, meniscus abnormality, or abnormal tendons or bursae on the right knee. In a March 2011 evaluation for SSA disability purposes, the Veteran reported a history of locking joints. The bilateral patella displayed hypermobility with lateral tracking of the patella bilaterally. The Veteran had a positive apprehension sign on the left patella, no ligament laxity, and a negative anterior drawer sign. The Veteran used a knee brace on his left knee and walked with a cane. The Veteran underwent a VA examination in May 2012, at which time the examiner noted that the Veteran's knees were 1+ (0 to 5 millimeters) upon anterior stability testing, posterior stability testing, and medial-lateral instability testing. There was no evidence or history of recurrent patellar subluxation or dislocation. The Board finds that the evidence does not support the award of a rating in excess of 10 percent for instability of either knee. A rating in excess of 10 percent for knee instability requires a finding that the Veteran has "moderate" recurrent subluxation or lateral instability. The evidence does not support such a finding. Examiners have consistently found no history of recurrent patellar subluxation or dislocation. To the extent that clinicians have detected instability in the Veteran's knees, it has been of minimal severity. In January 2006 and June 2006, VA clinicians noted the Veteran had hypermobile patellae. In March 2011, an SSA examiner noted that the Veteran's bilateral patella displayed hypermobility. In May 2012, an examiner noted that stability testing showed that the Veteran's knees were 1+, but the examiner noted no history or evidence of recurrent patellar subluxation. Clinical findings have otherwise consistently determined the Veteran's knees to be stable. While the Board acknowledges the Veteran's contentions of buckling, locking, and instability, the Board places greater weight on the narrative medical reports, which do not describe symptomatology of recurrent subluxation or lateral instability that the Board finds meets a "moderate" level. Accordingly, the Board finds that a rating in excess of 10 percent based on instability is not warranted at any time during the period under consideration for either the left or right knee. The Board finds that the preponderance of the evidence is against the assignment of a higher rating based on instability. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Ratings The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that the evidence does not show such an exceptional disability picture due to knee disability that the available schedular rating for a knee disability, with consideration of functional loss under 38 C.F.R. § 4.45, is inadequate. A comparison between the level of severity and symptomatology of the Veteran's knee functional loss with the established criteria found in the rating schedule and regulation governing functional loss shows that the criteria reasonably describe the Veteran's disability level and symptomatology. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The appeal of the claim of entitlement to a disability rating in excess of 30 percent for depressive disorder for the period prior to August 12, 2010, and in excess of 70 percent thereafter, is dismissed. A rating in excess of 10 percent for limitation of motion associated with a left knee disability is denied. A rating in excess of 10 percent for instability associated with a left knee disability is denied. A rating in excess of 10 percent for limitation of motion associated with a right knee disability is denied. A rating in excess of 10 percent for instability associated with a right knee disability is denied. ____________________________________________ L. A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs