Citation Nr: 1335627 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-00 284A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for fibromyositis and degenerative joint disease of the right knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to December 1966, and from June 1976 to November 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the RO that, in pertinent part, denied a rating in excess of 10 percent for fibromyositis of the right knee and right ankle, denied service connection for tinnitus, and declined to reopen a previously denied claim for service connection for right ear hearing loss. In March 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting at the RO. In July 2011, the Board granted service connection for tinnitus and reopened the previously denied claim for service connection for right ear hearing loss. The claim for an increased rating for fibromyositis of the right knee and right ankle, and the underlying matter of the Veteran's entitlement to service connection for right ear hearing loss, were remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In August 2012, while the case was in remand status, the AMC established service connection for right ear hearing loss, thereby granting the full benefit sought on appeal with respect to that issue. The AMC also recharacterized the service-connected disabilities of the Veteran's right knee and right ankle to include degenerative joint disease, and established separate 10 percent ratings, each, for the right knee and right ankle, effective from December 19, 2007 (the date of receipt of the Veteran's claim for increased rating). As a result, the issues presented for the Board's review were recharacterized as set forth above, on the title page. In January 2013, the Board denied a rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right ankle. The claim for a rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right knee was again remanded to the RO, via the AMC, for additional development. After taking further action, the AMC confirmed and continued the prior denial of that claim, and returned the case to the Board. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains additional VA treatment records, which the Board has reviewed. As was noted when this case was previously before the Board in January 2013, documents added to the record subsequent to the Board's July 2011 remand show that the Veteran filed a VA Form 9 (Appeal to Board of Veterans' Appeals) in May 2011 with respect to the matter of his entitlement to service connection for an acquired psychiatric disorder; thereby perfecting an appeal of that matter. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. However, as of yet, it does not appear that the RO has completed action on that issue, inasmuch as the RO has not yet certified the issue to the Board, and the Veteran's request for a Board hearing on that issue remains pending. The Board will consider the issue after the RO completes action on the issue and, if the claim remains denied, certifies that matter to the Board. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability is manifested by complaints of stiffness and pain, worsening with activities such as walking and kneeling; he has also complained of pain on sitting, and has reported that his knee "locks up" while driving. 2. Objectively, the Veteran's knee has been described as tender; pain on motion has been noted, as has an antalgic gait and occasional crepitus of the patella. 3. The Veteran has consistently demonstrated painless flexion in his right knee to at least 45 degrees, and extension to at least 5 degrees; repetitive movement has not been shown to have any further effect on function. 4. The Veteran's right knee is not ankylosed; his disability is not manifested by recurrent subluxation or lateral instability, and he is not shown to suffer from any service-connected malunion or nonunion of the tibia or fibula or traumatic genu recurvatum. 5. Defects of the Veteran's right knee medial and lateral menisci were radiographically identified in May 2008; mild effusion tenderness was noted on only one occasion, in February 2010. 6. Later in February 2010, the Veteran underwent a partial lateral meniscectomy and chondroplasty of the patella; it is not shown that, following surgery, he required at least one month of convalescence. 7. The Veteran's right knee surgical scars are not shown to be causative of any limitation of function; they are not painful or unstable, and they cover an area less than 39 square centimeters (cm) in size. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.30, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5021, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2013); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an evaluation in excess of 10 percent for his service-connected right knee disability. He maintains that the current evaluation does not adequately reflect the severity of his disability, as reflected, in part, by radiographic studies. I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify 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 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). In the present case, the Board finds that VA has satisfied its duty to notify. By way of a letter sent to the Veteran in January 2008, the AOJ informed the Veteran that, in evaluating his disability, it would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. He was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. See, e.g., Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that generic notice in response to a claim for an increased rating is all that is necessary). No corrective action is required. B. The Duty to Assist 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 (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). 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 and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). In the present case, the Board finds that the duty to assist has been fulfilled. The Veteran's service treatment records have been obtained, as have records of relevant post-service VA, private, and service department medical care. He has also been examined (to include in May 2008, September 2011, and May 2013). The reports of the September 2011 and May 2013 examinations are in substantial compliance with the directives contained in the Board's July 2011 remand, see, e.g., D'Aries v. Peake, 22 Vet. App. 97, 104 (2008), and the reports of the relevant examinations, taken together with other evidence of record, contain descriptions of impairment sufficient for the proper evaluation of his disability. No further development action is required. II. The Merits of the Veteran's Appeal Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). VA regulations define disability of the musculoskeletal system primarily as "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." 38 C.F.R. § 4.40 (2013). To that end, section 4.40 provides that: The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45 (2013). To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are also to be considered. Id. § 4.45(f). See also 38 C.F.R. § 4.59 (2013) ("The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"); DeLuca v. Brown, 8 Vet. App. 202 (1995). Myositis is rated on the basis of limitation of motion of affected parts, as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5021. Traumatic and degenerative arthritis, established by X-ray findings, are generally rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of Diagnostic Codes 5003 and 5010, the knee is considered a major joint. 38 C.F.R. § 4.45(f) (2013). Knee disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). A 10 percent rating is warranted for limitation of flexion to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2013). A 20 percent rating is warranted for limitation of flexion to 30 degrees, and a 30 percent rating is warranted for limitation of flexion to 15 degrees. Id. Knee disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). Ratings of 10, 20, 30, and 40 percent are warranted when extension is limited to 10, 15, 20, and 30 degrees, respectively. The highest evaluation, 50 percent, is warranted when extension is limited to 45 degrees. Id. Knee disabilities manifested by recurrent subluxation and lateral instability are evaluated in accordance with the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). Ratings of 10, 20, and 30 percent, respectively, are warranted for slight, moderate, and severe recurrent subluxation or lateral instability. Id. Knee disabilities may also be rated under Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 (2013). Under Diagnostic Code 5256, ratings of up to 60 percent are available for ankylosis of the knee. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating may be assigned for symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, ratings of 10, 20, and 30 percent, respectively, can be assigned for malunion of the tibia and fibula with slight, moderate, or marked knee or ankle disability. If there is nonunion of the tibia and fibula, with loose motion requiring a brace, a 40 percent rating is assigned. Finally, Diagnostic Code 5263 provides a single 10 percent rating for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Separate evaluations may be assigned for non-overlapping manifestations of knee disability. See, e.g., 38 C.F.R. § 4.14 (2013); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2013). In the present case, the evidence of record shows that service connection was originally established for fibromyositis of the right ankle and right knee in June 1994, effective from December 1993. The disability was evaluated as 10 percent disabling under Diagnostic Codes 5257-5271. In December 2007, the Veteran filed a claim for increased rating. As noted previously, in August 2012-while the appeal of the Veteran's claim was pending-the AMC recharacterized the service-connected disability of the right knee to include degenerative joint disease and established a 10 percent rating for that disability, separate and apart from the 10 percent rating assigned for the disability of the right ankle, effective from the date of receipt of the Veteran's claim for increase. A March 2007 VA treatment record reflects that the Veteran reported a long-standing problem of episodes of pain in his right knee. He indicated that his occupation required him to engage in a lot of up-and-down motion involving the knee, and that he had lately been having more problems with aching. Objectively, the knee was noted to be stable in the anterior-posterior, medial, and lateral directions, with no crepitus on range of motion. He was referred for an X-ray. A December 2007 report from MacDill Air Force Base shows that the Veteran presented for treatment with complaints of chronic right knee pain, worse with kneeling and when getting up after sitting for long periods. He denied swelling, stiffness, and locking. On examination, there was no swelling, erythema, warmth, deformity, muscle weakness, or instability of the knee. The patella was normal, and no pain was elicited by motion. X-rays were interpreted to reveal mild hypertrophic change of the patellofemoral joint. A January 2008 report from Healing Hands Physical Therapy, Inc., shows that the Veteran was seen for chronic right knee pain. He reported that work and daily walking activity increased the pain. He rated the pain 2-3/10 at the posterior aspect of the right knee, and 5-6/10 when worse at the medial and posterior aspects. Objectively, he exhibited a slight antalgic and stiff knee gait pattern. He had moderate tenderness of the right medial collateral ligament, slight tenderness at the popliteal fossa, and moderate tightness of the right quadriceps, hamstrings and iliotibial band. Tests for patellofemoral grind and instability were negative. On manual muscle testing, the right lower extremity was grossly graded 4+/5. He could flex the right knee to 122 degrees and extend it to 5 degrees. A February 2008 record from Orthosports, LLC, shows that the Veteran was seen for complaints of stiffness of the knee joint and pain and osteoarthrosis in his lower leg. Objectively, he was noted to have tenderness and crepitus of the patella; a positive patella load test; a positive McMurray's test, medially; a positive Apley's compression test, medially; and an antalgic gait. Alignment of the joint was normal, as were muscle strength, reflexes, and coordination, and there was no instability. On VA treatment in April 2008, the Veteran reported that he had a long history of osteoarthritis of the right knee, with more trouble recently. Magnetic resonance imaging (MRI) was ordered. The resulting MRI report, dated in May 2008, contains an impression of degenerative joint disease of the right knee with mucoid degeneration of medial and lateral menisci, and a suggestion of a small complex tear in the posterior horn of the medial meniscus. The Veteran was examined for VA compensation purposes later that month, in connection with his claim for increased rating. He complained of pain and fatigability in his right knee. He also complained of flare-ups with activity, alleviated by rest, that did not result in additional limitation of motion. He denied weakness, stiffness, swelling, heat/redness, instability, giving way, locking, lack of endurance, and episodes of dislocation or recurrent subluxation. It was noted that problems with his knee did not adversely affect his daily activities or usual occupation. On examination, the Veteran's gait was normal. His right knee was not ankylosed. He was able to extend the knee to 0 degrees, and was able to flex it to 130 degrees, with slight pain beginning at 80 degrees. It was noted that there was no change in the range of motion after repetition, no objective evidence of fatigue, weakness, lack of endurance, incoordination, or instability, and no functional limitations due to pain, fatigue, or lack of endurance. Lachman's and McMurray's tests were negative. The examiner indicated that there were no functional limitations on standing or walking, no effusion, redness, heat, or guarding, and no indication of abnormal weight bearing. X-rays were interpreted to reveal minimal degenerative changes. The diagnostic assessment was mild arthritis and chondromalacia of the right knee patellofemoral joint. The examiner commented that the clinical examination and X-rays showed no significant problem with the Veteran's knee, and that he did his maintenance work without problems. During VA mental health treatment in November 2008, the Veteran reported that walking one-half mile resulted in right knee pain. In December 2008, he indicated that he wanted to try a cane to see if it would improve his knee pain; and a cane was issued. Records from MacDill Air Force Base, dated in February 2009 and March 2009, reflect the Veteran's complaints of right knee pain. On examination, the anterior aspect, medial tibial plateau, medial joint line, and medial meniscus of the knee were all tender to palpation, and a McMurray's test was positive medially. There was no swelling, induration, edema, erythema, warmth, deformity, medial instability, lateral instability, plane medical (straight) instability, one plane lateral (straight) instability, anterior drawer sign, or posterior drawer sign. The patella was normal, as was range of motion, and no pain was elicited on motion. X-rays were interpreted to reveal mild patellofemoral compartment osteophytosis. No other significant osseous, joint, or soft tissue abnormalities were identified. The diagnostic assessment was that he had osteoarthritis of the knee. He was treated with injections. In October 2009, the Veteran sought treatment for his right knee from a private physician, Steven Nadler, M.D. The Veteran reported constant pain in the knee, rated 5 on a scale of 1 to 10. He indicated that his pain was "quite significant" after activities, almost going to an "8," and described pain over the posterior and outer aspect of the knee. He reported that he heard occasional clicking noises, but denied swelling. He related that he had tried therapy, with no success, and that he had had cortisone and Synvisc injections, but that nothing seemed to relieve his symptoms. On examination, there was tenderness along the medial side of the Veteran's right knee, and also somewhat posteriorly. His movement was described as "good," with range of motion limited to about 110 degrees, when he complained of some discomfort. He had no sensory or motor deficits in the leg, and his collateral and cruciate ligaments were intact, with no gross instability. He had a negative pivot shift and Lachman test, and no neurological abnormalities. The diagnostic impression was that he had probable degenerative joint disease of the right knee with an associated medial meniscal tear. Dr. Nadler noted that the Veteran's symptoms might be coming from the torn medial meniscus, but that sometimes the symptoms were coming from the degenerative changes; as such, removal of the medial meniscus might not improve his symptoms. In February 2010, the Veteran reported knee pain developing after what he described as a binge of alcohol intake. Examination of the right knee revealed mild effusion tenderness at the midline joint, without laxity. The diagnostic assessment was that he had gout. A VA treatment record from February 2010 shows that the Veteran was scheduled for private knee surgery the next day, to address problems with his meniscus. Records from Dr. Nadler show that the Veteran thereafter underwent a partial lateral meniscectomy and chondroplasty of the patella. The postoperative diagnoses were torn lateral meniscus, degenerative joint disease, and grade 2/3 chondromalacia of the patella of the right knee. A VA record, dated later that month, indicates that the Veteran had recovered nicely from right knee surgery in which a community surgeon trimmed his medial meniscus and "cleaned out" arthritis. The Veteran reported that he was walking two days after surgery, and was given a "good to go" by the doctor at his four-day follow-up appointment, with no need for physical therapy. The Veteran indicated that he was very pleased with the surgery and outcome, and that "it feels great," but also indicated that he was told that his arthritic pain was likely to return. During VA treatment in June 2010, the Veteran reported that he was able to walk "a lot better" after his right knee arthroscopic surgery. In December 2010, he reported continued problems with his right knee. During a Board hearing conducted in March 2011, the Veteran testified that his right knee disability had gotten worse since the time of his 2008 VA compensation examination. He stated that the knee ached all the time, and that it "locked up" on him while driving. He said that, when the knee locked up, "I hit the floor. I can't really stand on it. And then it radiates up my leg and into my hip." He also questioned whether his range of motion had been adequately measured during the 2008 examination. An April 2011 VA treatment record reflects the Veteran's complaints of diffuse aches and pains in his knees (and feet). X-rays in July 2011 were interpreted to reveal mild degenerative changes, with no significant joint effusion. On VA examination in September 2011, the Veteran reported a worsening of his right knee disability. He complained of a throbbing pain while sitting, walking, and driving. He denied symptoms of stiffness, weakness, deformity, instability, incoordination, episodes of dislocation or subluxation, locking, effusions, giving way, decreased speed of joint motion, and flare-ups. On examination, the Veteran's gait was antalgic. His right knee was noted to be tender. There were no bumps consistent with Osgood-Schlatter's disease, no mass behind the knee, and no crepitation, grinding, clicks, snaps, instability, abnormal tendons, or abnormality of the patella or meniscus. There was also no evidence of abnormal weight bearing, and no loss of a bone or part of a bone. The Veteran was able flex the right knee to 125 degrees, with pain beginning at that point, and extension was noted to be normal. The examiner indicated that there was objective evidence of pain following repetitive motion; however, there were no additional limitations after three repetitions. X-rays were interpreted to reveal mild degenerative changes with no acute bony or soft tissue abnormality. The diagnostic assessment was that the Veteran had degenerative joint disease of the right knee. The examiner indicated that the Veteran's disability had significant effects on his usual occupation, in terms of pain, decreased mobility, and problems with lifting and carrying. The examiner also indicated that the disability had severe effects on daily activities such as exercise and sports; moderate effects on activities such shopping, recreation, and traveling; mild effects on activities such as driving and performing chores; and no effect on activities such as feeding, bathing, dressing, grooming, and toileting. A VA treatment record dated in April 2012 reflects the Veteran's report that he was recently doing lawn work and "overdid things" such that he had an allergic reaction to all the pollen, mold, and grass, with coughing until his diaphragm hurt. June, July, August, and October 2012 reports reflect treatment for pes planus. Other reports from 2012 reflect clinical impressions of obesity, alcohol abuse, and osteoarthritis of both knees. Records from Dr. Nadler, dated in February 2013, reflect the Veteran's report that, although he had done well for a time after his arthroscopy, the problems with his right knee had been back for almost eight months. He reported constant pain in the knee, increasing with walking more than a few hundred feet. Objectively, it was noted that his wound from the arthroscopy had healed nicely; that he had no effusion; and that his movement was good. X-rays revealed no fractures or dislocations. The diagnostic assessment was recurrent right knee pain possibly due to mild osteoarthritis/chondromalacia patella. The Veteran was examined for compensation purposes in May 2013. He reported that his right knee condition had worsened since his last VA examination in 2011. He indicated that he had had arthroscopic surgery on the knee three years ago, and that the surgery helped his pain initially, but now was getting worse again. He complained of constant pain in the knee, as well as stiffness. He reported that he could walk about a block and a half, and indicated that after standing for some time he had to shift his weight mostly to his left leg. He denied having any specific flare, reporting that he did little activity any more that would put the knee at risk of injury. On examination, the Veteran had an antalgic gait and walked with a cane. His right knee was tender, with mild sub-patellar pain with manipulation of the patella. It was noted that he had had a meniscectomy for a meniscal tear, with frequent episodes of joint pain-but no locking or effusion-and that the current residuals of the meniscectomy consisted of "[c]ontinued arthritis pain." On testing, he was able to flex the knee to 115 degrees, with objective evidence of painful motion at 45 degrees. There was no additional limitation of flexion after repetitive use. Extension was noted to be full, with no objective evidence of pain. Muscle strength was noted to be 5/5 on both flexion and extension. There was no evidence of anterior, posterior, or medial-lateral instability; recurrent subluxation or dislocation of the patella; or shin splints; and it was noted that the scars from arthroscopic surgery were not painful or unstable, and did not cover an area greater than 39 square centimeters (6 square inches). In summary, the examiner noted that the Veteran's right knee disability was characterized by less movement than normal; pain on movement; disturbance of locomotion and interference with sitting, standing, and weight bearing; and that, as a result, he was best suited to sedentary or near sedentary job tasks. The final diagnostic assessment was that he had degenerative joint disease of the right knee. Following review of the evidence in this case, and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the assignment of an increased schedular evaluation for the Veteran's service-connected right knee disability. The evidence contemporaneous with the current claim, including the reports of VA compensation examinations conducted in May 2008, September 2011, and May 2013, show that while the Veteran's knee has been described as tender, with an antalgic gait and occasional crepitus of the patella, he has consistently demonstrated painless flexion in his right knee to at least 45 degrees, and extension to at least 5 degrees. Moreover, repetitive-use testing has not been objectively shown to have any further effect on function. Thus, there is no basis for higher and/or separate evaluations, on the basis of limitation of motion, under Diagnostic Codes 5260 or 5261. The Veteran's right knee is not ankylosed. His disability is not manifested by recurrent subluxation or lateral instability, and he is not shown to suffer from any service-connected malunion or nonunion of the tibia or fibula or traumatic genu recurvatum. As such, there is also no basis for the assignment of higher and/or separate evaluations under Diagnostic Codes 5256, 5257, 5262, or 5263. Defects of the Veteran's right knee medial and lateral menisci were radiographically identified in May 2008. However, the evidence does not establish that his disability was at any time manifested by "frequent episodes" of effusion into the joint, so as to warrant a higher or separate evaluation under Diagnostic Code 5258. Indeed, effusion tenderness was noted on only one occasion, in February 2010. With regard to Diagnostic Code 5259, the Board notes that, later in February 2010, the Veteran underwent a partial lateral meniscectomy and chondroplasty of the patella. Although it appears that the Veteran may now be suffering from residuals of those procedures, it is clear from the report of the Veteran's May 2013 VA examination that those residuals consist only of "[c]ontinued arthritis pain." Because the Veteran is already being compensated for arthritic pain, and associated limitation of motion, under Diagnostic Codes 5003/5010, 5260, and 5261, he cannot be compensated for the same pain under Diagnostic Code 5259. To do so would be to compensate him twice for a single manifestation; which is impermissible under the law. See 38 C.F.R. § 4.14 (2013). The Board has considered whether the Veteran is entitled to a temporary total rating under the provisions of 38 C.F.R. § 4.30 (2013). However, the evidence does not show that, following his surgery in February 2010, he required at least one month of convalescence. To the contrary, the Veteran has reported that he was walking two days after surgery, and was given a "good to go" by his doctor at his four-day follow-up appointment, with no need for physical therapy. Thus, there is no basis for the assignment of a rating under 38 C.F.R. § 4.30. The Board has also considered the Veteran's right knee surgical scars. However, that there is no suggestion that they are causative of any limitation of function. The Veteran's private physician, Dr. Nadler, indicated in February 2013 that the surgical wound had healed nicely. In addition, it was specifically noted on VA examination in May 2013 that the scars were not painful or unstable, and covered an area less than 39 square cm in size. As such, there is no basis for the assignment of higher and/or separate evaluations under former 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 (2008). (The Board notes that amendments to the criteria applicable to the evaluation of scars became effective on October 23, 2008, while the Veteran's appeal was pending. See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54,708 (Sept. 23, 2008) (now codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2013)). However, those amendments apply only to applications for benefits received by VA on or after October 23, 2008.) In the final analysis, the Board finds no sound evidentiary basis for the assignment of a higher evaluation under the diagnostic code that forms the basis of the Veteran's current evaluation (Diagnostic Code 5010), under 38 C.F.R. § 4.30, or any other diagnostic codes that are potentially applicable. In evaluating the Veteran's claim, the Board has specifically considered whether he is entitled to a "staged rating." See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the Board's conclusion, however, that the Veteran's right knee disability has never been more than 10 percent disabling since the time that the underlying claim for increase was filed. A "staged rating" is not warranted. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). The criteria 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. The Board has considered whether the Veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The Board acknowledges that there is evidence that his right knee disability has significant effects, both occupationally and in terms of certain daily activities, as described in the aforementioned reports. It is the Board's conclusion, however, that the Veteran's right knee symptoms-consisting primarily of pain and limited motion-are fully contemplated by the relevant diagnostic criteria, together the related provisions of 38 C.F.R. § 4.40, 4.45, and 4.59; which, as indicated, provide higher and/or separate evaluations for greater levels of impairment. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right knee is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs