Citation Nr: 1335262 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 05-02 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for Osgood- Schlatter's disease with chondromalacia of the patella of the left knee. 2. Entitlement to an initial evaluation in excess of 10 percent for Osgood Schlatter's disease with chondromalacia of the patella of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2005, the Veteran testified at a personal hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The Board notes that a hearing was held before a Veterans Law Judge in February 2007. The Veterans Law Judge who conducted the hearing subsequently left the Board. In January 2011, the Veteran was offered the opportunity to have another hearing before a current Veterans Law Judge of the Board; however, the Veteran informed the Board that he did not wish to have another Board hearing, therefore, no additional action is needed in this regard. In a March 2008 decision, the Board, in pertinent part, denied entitlement to increased ratings for the Veteran's service-connected Osgood-Schlatter's disease of the right and left knees. The Veteran appealed the Board's March 2008 decision as to these issues to the United States Court of Appeals for Veterans Claims (Court). In an October 2010 Memorandum Decision, the Court set aside the Board's March 2008, decision with regard to the initial rating issues involving Osgood-Schlatter's disease of the right and left knees. Those issues were then returned to the Board for further adjudication in light of the Court's action. In an October 2011 decision, the Board again denied the Veteran increased initial ratings for his Osgood-Schlatter's disease of the bilateral knees. The Veteran again appealed the denial of increased initial ratings to the Court. In a July 2012 order, the Court granted a Joint Motion for Remand (Joint Motion) which had the effect of vacating the October 2011 denial of increased initial ratings, and returned these issues to the Board for further consideration. These issues were subsequently remanded by the Board in March 2013 for additional development, to include a VA medical examination. Such an examination was afforded the Veteran in July 2013. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In a July 2013 rating decision, the Veteran was granted awards of service connection for chondromalacia patella of the right and left knee. These awards were merged into the prior awards for Osgood-Schlatter's disease of the bilateral knees, as reflected on the first page of this decision. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The competent and probative evidence of record demonstrates that the Veteran's service connected left knee disability is manifested by complaints of pain, some limitation of movement, and slight instability, but is not shown to have flexion limited to less than 60 degrees or extension limited to greater than 5 degrees. 2. The competent and probative evidence of record demonstrates that the Veteran's service connected right knee disability is manifested by complaints of pain, some limitation of movement, and slight instability, but is not shown to have flexion limited to less than 60 degrees or extension limited to greater than 5 degrees. CONCLUSIONS OF LAW 1. An initial evaluation in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the left knee is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5099, 5256-63 (2013). 2. A separate compensable rating of 10 percent is warranted for instability of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013). 3. An initial evaluation in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the right knee is denied. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5024, 5099, 5256-63 (2013). 4. A separate compensable rating of 10 percent is warranted for instability of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In May 2004 and March 2006 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. Additionally, as this appeal involves a claim of higher initial ratings for service-connected knee disabilities, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103 notice for the service connection claims. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). The Board notes that, in the present case, initial notice was issued in May 2004, prior to the October 2004 adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Veteran has also been afforded VA medical examinations in September 2004, November 2006, and July 2013. The Board notes that the VA and private medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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). In adjudicating increased initial rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Fenderson v. West, 12 Vet. App. 119 (1998). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Initial Rating - Osgood-Schlatter's Disease of the Left Knee The Veteran seeks a disability rating in excess of 10 percent for his Osgood-Schlatter's disease with chondromalacia patella of the left knee. He contends this disability interferes with his mobility, causes him chronic pain, and prevents him from performing tasks of daily living. The Veteran has been awarded a 10 percent disability rating under Diagnostic Code 5099-5024 for tenosynovitis, which in turn requires evaluation of the disability as analogous to degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, with a minimum rating of 10 percent to be assigned for each major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is assigned for limitation of flexion to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. Pursuant to Diagnostic Code 5261, a noncompensable rating is assigned for limitation of extension to 5 degrees, a 10 percent rating will be assigned for extension of the knee limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating for limitation to 20 degrees, and a 40 percent rating for limitation to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2012). Compensable evaluations may also be granted for dislocation or removal of the semilunar cartilage of the knee joint. Semilunar cartilage is defined as either of the crescent-shaped wedges of fibrocartilage found in the knee. The meniscus is a crescent-shaped wedge of fibrocartilage. See Dorland's Illustrated Medical Dictionary, 28th ed., 1012, 1504. Symptomatic removal of the cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Dislocation of the cartilage with frequent episodes of "locking", pain, and effusion warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board is also cognizant of VA General Counsel Opinion (VAOPGCPREC) 23-97, which interprets that in certain cases where the veteran has both limitation of motion and instability of the affected knee joint, a separate compensable rating may be assigned without violating 38 C.F.R. § 4.14, the regulation against pyramiding. Diagnostic Code 5257, for other impairment of the knee characterized by recurrent subluxation or lateral instability, provides a 10 percent rating for slight knee impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257; see also VAOPGCPREC 9-98. The Board next notes that on September 17, 2004, the VA General Counsel issued VAOPGCPREC 9-2004, which interprets that a veteran can receive separate ratings under Diagnostic Code 5260 (limitation of flexion), and Diagnostic Code 5261 (limitation of extension) for disability of the same joint if both extension and flexion of the knee are impaired to a compensable degree. VAOPGCPREC 9-2004 (2004). Upon receipt of his claim, the Veteran was afforded a September 2004 VA medical examination. He gave a history of bilateral knee pain since service, with occasional swelling and giving way. His pain was 8/10 in the right knee and 7/10 in the left. On physical evaluation he had extension to 0 degrees and flexion to 130 degrees bilaterally. Slight crepitus was present on the right with range of motion, but he was without fluid in the joint or laxity in either knee. Neither knee exhibited instability. No additional limitation of motion was noted to result from repetitive motion or as the result of flare-ups. In May 2005, the Veteran testified before a Decision Review Officer at the RO. He stated that his bilateral knee disabilities caused him recurrent pain, especially at his work, where he was required to climb stairs on a regular basis. He reported occasionally wearing knee braces and using heating pads on his knees at night. These measures, however, provided only temporary and partial relief. He was next afforded a November 2006 VA medical examination. He reported recurrent pain of both knees, especially with use. His pain averaged 7/10. He used bilateral knee braces daily. On physical evaluation, his knees were without effusion, swelling, or other deformity. His gait was within normal limits. Range of motion testing indicated extension to 0 degrees and flexion to 90 degrees bilaterally. Pain was reported at 40 degrees of flexion. Repetitive motion did not result in additional limitation of motion, weakness, fatigue or incoordination. The medial and lateral collateral ligaments were intact and stable, and there was no evidence of anterior or posterior cruciate ligament instability or laxity. No medial or lateral meniscus abnormalities were present. Lachman's and McMurray's tests were negative. X-rays of the knees taken in July 2006 were within normal limits. At his February 2007 hearing before a Veterans Law Judge, the Veteran stated that his knee disabilities result in bilateral knee pain, right worse than left. He also testified that his knees gave out on him on occasion, resulting in some falls. Most recently, the Veteran was afforded a VA medical examination of his knees in July 2013. His claims file was reviewed in conjunction with the examination. He reported bilateral knee pain, tenderness, and crepitus. He also stated he fell approximately twice per month due to "shakiness" in his knees. His bilateral knee pain increased with use. A right knee arthroscopy had been performed in 1999, with no surgery reported since that time. He regularly used knees braces bilaterally, but denied the use of other assistance aides. On objective examination, tenderness was present in both knees. Range of motion testing indicated flexion to 130 degrees, with pain beginning at 100 degrees, bilaterally. Extension was to 0 degrees bilaterally. With repetitive motion, flexion of the left knee was reduced to 125 degrees, with no other reduction in the other planes of motion bilaterally. Also with repetitive motion, bilateral crepitus, instability of station, and disturbances of locomotion were noted by the examiner. Joint stability tests found both knees to be stable to posterior, anterior, and medial-lateral stresses. No patellar subluxation or dislocation was present in either knee, and no history of medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or tibial or fibular impairment was noted. The examination report indicates the Veteran has undergone a total knee replacement, but this appears to be a clerical error, as the Veteran has denied any surgery other than his 1999 right knee arthroscopy, and no dates or other information concerning a total knee replacement were provided. An arthroscopy scar was observed on the Veteran's right knee, but this scar was not painful, unstable, or greater than 39 cms square in size. X-rays confirmed traumatic or degenerative arthritis, but were negative for patellar subluxation bilaterally. The examiner determined that the Veteran's bilateral knee disabilities did not prevent him from working. The Veteran's VA clinical treatment records have also been reviewed and considered. These records reflect the Veteran's contentions of chronic bilateral knee pain, weakness, and instability of the knees. The objective findings found therein, however, do not differ from those found on various VA examinations during the pendency of this appeal. After considering the totality of the evidence, the Board finds the preponderance of the evidence to be against an initial disability rating in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the left knee. Upon review of the record, there are no objective findings of either the flexion or extension of the left knee being limited enough to satisfy the rating criteria for a higher 20 percent rating under Diagnostic Codes 5260 and 5261. The Board also notes that, while there is X-ray evidence of degenerative joint disease of the left knee, under Diagnostic Code 5003 the Veteran is currently receiving the maximum 10 percent rating possible under 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board has also considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. While the Veteran reported such symptoms as weakened movement, excess fatigability, incoordination, pain on movement, swelling, and crepitus, no additional limitation of motion sufficient to support a disability rating in excess of 10 percent was noted to result with repetitive motion. The specific clinical measures of ranges of motion, including the VA examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. For these reasons, the Board finds that, for the entire rating period, the criteria for a disability rating in excess of 10 percent, even considering any additional limitation of motion due to such factors as weakened movement, excess fatigability, incoordination, pain on movement, and swelling, for the left knee disability have not been met or more nearly approximated for any period. 38 C.F.R. §§ 4.3, 4.7. Thus, staged ratings are not warranted for this disability. As noted above, the Board acknowledges VAOPGCPREC 9-2004 where it was interpreted that a claimant who had both limitation of flexion and limitation of extension of the same leg both to a compensable degree must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Because the Veteran has neither limitation of flexion nor extension to a compensable level, separate compensable ratings are not warranted. The Board acknowledges that during the November 2006 VA examination, the Veteran reported onset of his left knee pain at 40 degrees of flexion. Nevertheless, even assuming such a finding is the functional equivalent of flexion limited to 40 degrees, it would only support a compensable rating of 10 percent under Diagnostic Code 5260. A 10 percent initial evaluation has already been awarded for this disability. Next, the Board observes the Veteran has reported having instability and weakness of the left knee. The Veteran is competent to report such symptoms because this requires only personal knowledge as it comes through one senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In light of his competent oral and written assertions of instability of the left knee, a separate compensable rating of 10 percent is warranted for the length of the appeals period under Diagnostic Code 5257 for slight lateral instability of the left knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted above, a separate disability rating for instability may be granted without violating the regulation against pyramiding. See VAOPGPREC 23-97 and VAOPGCPREC 9-98. The Board also finds, however, that a disability rating in excess of 10 percent under Diagnostic Code 5257 is not warranted, as the preponderance of the evidence is against findings of moderate or severe impairment due to lateral instability or recurrent subluxation. On objective VA examinations in September 2004, November 2006, and July 2013, his ligaments of the left knee were intact and without lateral instability or subluxation. The objective findings by an examiner trained to identify instability and subluxation, following the Veteran's history, diagnostic testing, and examination of the knee that found no left knee instability, however, far outweigh the Veteran's general reports of the same. As such, the weight of the evidence demonstrates that the Veteran does not in fact have more than slight instability of the left knee to warrant a separate rating in excess of 10 percent for instability under Diagnostic Code 5257. See VAOPGPREC 23-97 and VAOPGCPREC 9-98. The Board has also considered whether the Veteran's service-connected Osgood-Schlatter's disease with chondromalacia patella of the left knee may be rated under any other diagnostic codes related to the knee and leg. See Schafrath, 1 Vet. App. 589. It is neither contended nor shown that the Veteran's service-connected disability involves ankylosis of the knee (Diagnostic Code 5256), removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application at the present time. In conclusion, the preponderance of the evidence is against the award of an initial disability rating in excess of 10 percent for the Veteran's Osgood-Schlatter's disease with chondromalacia patella of the left knee for any period. The evidence does, however, warrant a separate disability rating of 10 percent and no higher for instability of the left knee. As a preponderance of the evidence is against the award of increased ratings in excess of those granted herein, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Initial Rating - Osgood-Schlatter's Disease of the Right Knee The Veteran seeks a disability rating in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the right knee. He contends this disability resulted in pain, limitation of motion, and instability of his right knee, interfering with his mobility and performance of the tasks of daily living. The criteria for the evaluation of knee disabilities has been noted above and need not be repeated here. Additionally, the objective clinical findings relative to the Veteran's right knee are discussed above, and also need not be repeated. After considering the totality of the evidence, the Board finds the preponderance of the evidence to be against a disability rating in excess of 10 percent for Osgood-Schlatter's disease of the right knee. Upon review of the record, there are no objective findings of either the Veteran's flexion or extension of the right knee being limited enough to satisfy the rating criteria for a higher 20 percent rating under either Diagnostic Codes 5260 or 5261, as the Veteran has consistently displayed flexion in excess of 30 degrees and extension in excess of 15 degrees. The Board also notes that while there is X-ray evidence of degenerative arthritis of the right knee, under Diagnostic Code 5003, the Veteran is currently receiving the maximum 10 percent rating possible under 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board has also considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. In reviewing the evidence, all VA examination reports indicate that while the Veteran reported such symptoms as weakened movement, excess fatigability, incoordination, pain on movement, and swelling, crepitus, no additional limitation of motion was noted to result with repetitive motion. The specific clinical measures of ranges of motion, including the VA examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. For these reasons, the Board finds that the criteria for a disability rating in excess of 10 percent, even considering any additional limitation of motion due to such factors as weakened movement, excess fatigability, incoordination, pain on movement, and swelling, for the right knee disability have not been met or more nearly approximated for any period. 38 C.F.R. §§ 4.3, 4.7. Thus, staged ratings are not warranted for this disability. As noted above, the Board acknowledges VAOPGCPREC 9-2004 where it was interpreted that a claimant who had both limitation of flexion and limitation of extension of the same leg to a compensable degree must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Because the Veteran has neither limitation of flexion nor extension of the right knee to a compensable level, separate compensable ratings are not warranted. The Board acknowledges that during the November 2006 VA examination, the Veteran reported onset of his right knee pain at 40 degrees of flexion. Nevertheless, even assuming such a finding is the functional equivalent of flexion limited to 40 degrees, it would only support a compensable rating of 10 percent under Diagnostic Code 5260. A 10 percent initial evaluation has already been awarded for this disability. Next, the Board observes the Veteran has reported having instability and weakness of the right knee. The Veteran is competent to report such symptoms because this requires only personal knowledge as it comes through one senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In light of his competent oral and written assertions of instability of the right knee, a separate compensable rating of 10 percent is warranted for the length of the appeals period under Diagnostic Code 5257 for slight lateral instability of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As noted above, a separate disability rating for instability may be granted without violating the regulation against pyramiding. See VAOPGPREC 23-97 and VAOPGCPREC 9-98. The Board also finds, however, that a disability rating in excess of 10 percent under Diagnostic Code 5257 is not warranted, as the preponderance of the evidence is against findings of moderate or severe impairment due to lateral instability or recurrent subluxation. On objective VA examinations in September 2004, November 2006, and July 2013, his ligaments of the right knee were intact and without lateral instability or subluxation. The objective findings by an examiner trained to identify instability and subluxation, following the Veteran's history, diagnostic testing, and examination of the knee that found no left knee instability, however, far outweigh the Veteran's general reports of the same. As such, the weight of the evidence demonstrates that the Veteran does not in fact have more than slight instability of the right knee to warrant a separate rating in excess of 10 percent for instability under Diagnostic Code 5257. See VAOPGPREC 23-97 and VAOPGCPREC 9-98. The Board has also considered whether the Veteran's service-connected Osgood-Schlatter's disease of the right knee may be rated under any other diagnostic codes related to the knee and leg. It is neither contended nor shown that the Veteran's service-connected disability involves ankylosis of the knee (Diagnostic Code 5256), removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application at the present time. The Board acknowledges that the Veteran underwent a right knee arthroscopy in 1999; however, according to the July 2013 VA medical examination report, this surgery did not result in any removal or dislocation of the semilunar cartilage. In reviewing the Veteran's claim, the Board is also aware that separate ratings are available for scars that are poorly nourished, with repeated ulceration; are tender and painful on objective demonstration; or cause any limitation of function. 38 C.F.R. § 4.118, Diagnostic Codes 7800-05; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition). In the present case, the Veteran has not been awarded a separate compensable rating for his 1999 surgical scar of the right leg. According to the July 2013 VA examination report, his scar of the right leg was not painful, unstable, or greater than 39 cms square in size. No additional limitation of motion or other impairment was attributed by the examiner to this scar, and the Veteran has likewise not reported pain or other symptomatology related to his scar. Thus, a separate compensable rating is not warranted for the Veteran's surgical scar of the right knee, as it does not, according to the evidence of record, result in additional impairment of the underlying area to a compensable degree. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-05. In conclusion, the preponderance of the evidence is against the award of an initial disability rating in excess of 10 percent for the Veteran's Osgood-Schlatter's disease with chondromalacia patella of the right knee for any period. The evidence does, however, warrant a separate disability rating of 10 percent and no higher for instability of the right knee. As a preponderance of the evidence is against the award of increased ratings in excess of those granted herein, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Evaluation Disability evaluations 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; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. The criteria specifically provide for ratings based on the presence of knee joint pain, instability, and limitation of motion. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256-63. The symptomatology and impairment caused by the Veteran's Osgood-Schlatter's disease with chondromalacia patella of the bilateral knees are contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other evidence of record. In this case, the Veteran has reported joint pain, limitation of motion, and some instability secondary to his service-connected orthopedic disabilities. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria for these disorders. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disabilities on appeal, and referral for consideration of an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER An initial evaluation in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the left knee is denied. A separate evaluation of 10 percent and no higher is warranted for instability of the left knee. An initial evaluation in excess of 10 percent for Osgood-Schlatter's disease with chondromalacia patella of the right knee is denied. A separate evaluation of 10 percent and no higher is warranted for instability of the right knee. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs