Citation Nr: 1335688 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 05-12 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with mild degenerative changes, for the period prior to February 23, 2004 and since April 1 2004 (hereinafter right knee disorder). 2. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee, with mild degenerative changes (hereinafter left knee disorder). 3. Entitlement to a separate compensable rating for hypermobility and/or tracking of the left patella. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to December 1993 and from December 1998 to October 2000. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, denied a compensable for what was then treated as a single, though bilateral, knee disability. In June 2005, the RO granted separate 10 percent ratings for the Veteran's right and left knee disabilities, effective June 9, 2005. The disorders were characterized as chondromalacia patella with degenerative changes as listed on the title page. In January 2006, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This case first came before the Board in November 2006, at which time it was remanded for additional development. In a July 2007 decision, the RO granted an earlier effective date of October 31, 2000 for the Veteran's 10 percent knee ratings. In May 2010, the Board denied the Veteran's claims for increased ratings for his knee disabilities. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In February 2011, the parties filed a Joint Motion for Remand (Joint Motion), and in February 2011, in accordance with the Joint Motion, the Court vacated the Board's decision and remanded the claims back to the Board. In May 2011, the Board remanded the claims for additional development, to include obtaining updated VA and private treatment records and a new VA examination. The Board subsequently remanded the Veteran's appeal in January 2012 and in July 2013, as development completed following the May 2011 remand was inadequate. Since the most recent remand, the Veteran's claims file has been converted from a paper file to an electronic record in the Veterans Benefit Management System (VBMS). The majority of the materials relevant to his claim are now found in his VBMS file, with the exception of certain VA treatment records, which, though referenced in the VBMS file, are only found in the Virtual VA electronic record. The Board has reviewed both the VBMS and Virtual VA records in its adjudication of this appeal. The Board notes that in December 2012, the Appeals Management Center (AMC) granted a separate, 20 percent rating for hypermobility and recurrent subluxation of the right patella, effective July 27, 2011, and a temporary 100 percent evaluation for the chondromalacia patella of the right knee for surgical treatment necessitating convalescence, for the period of February 23, 2004 through March 31, 2004. The subluxation rating is assigned under the knee instability code as will be discussed in more detail below. The Veteran did not appeal the December 2012 rating decision, with regard to the ratings assigned or the effective dates for those ratings; therefore, those issues are not presently before the Board. The issue of entitlement to a separate compensable rating for hypermobility and/or tracking of the left patella is addressed in the REMAND portion of this decision, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the period prior to February 23, 2004 and since April 1 2004, the Veteran's service-connected right knee disability has been manifested by x-ray evidence of arthritis and complaints of pain on motion; flexion is not limited to less than 45 degrees and extension is not limited to more than 5 degrees; no more than slight instability of the knee has been present; the evidence does not support a diagnosis of traumatic genu recurvatum. 2. The Veteran's service-connected left knee disability has been manifested by x-ray evidence of arthritis and complaints of pain on motion; flexion is not limited to less than 45 degrees and extension is not limited to more than 5 degrees; locking, recurrent subluxation or instability of the knee has not been present; the evidence does not support a diagnosis of traumatic genu recurvatum. CONCLUSIONS OF LAW 1. For the period prior to February 23, 2004 and since April 1 2004, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5263 (2013). 2. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Although initially, the Veteran was provided insufficient VCAA notice in May 2003, fully compliant notice was provided to the Veteran in December 2006. The Board acknowledges that the December 2006 notice was not issued prior to the adverse determination on appeal. The claim was subsequently readjudicated in multiple Supplemental Statements of the Case, however, and thus any timing deficiency has been appropriately cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The results of an August 2013 VA examination, as requested by the July 2013 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's statements in support of the claim are of record, including testimony provided at a January 2006 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and her representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Rating Criteria for the Knee The Veteran's knee disabilities are current rated under Diagnostic Code 5014-5010. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2013). In this case, Diagnostic Code 5014-5010 reflects consideration of osteomalacia (Diagnostic Code 5014) and the effects of traumatic arthritis (Diagnostic Code 5010). Diagnostic Code 5014 instructs that the disability be rated based on limitation of motion of the affected parts, to include based on arthritis. Diagnostic Code 5010, referring to traumatic arthritis, provides for ratings under Diagnostic Code 5003 as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the joint involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. With any form of arthritis, painful motion is an important factor. It is the intention of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A compensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 38 C.F.R. § 4.59 based on painful motion, is in order where arthritis is established by x-ray findings and no actual limitation of motion of the affected joint is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. Based on the evidence of record, the left knee disability may also potentially be rated under Diagnostic Codes 5257, 5260, 5261, or 5263. There is no evidence of cartilage impairment that would suggest a rating under Diagnostic Codes 5258 or 5259. Under Diagnostic Code 5257, where there is slight recurrent subluxation or lateral instability, a 10 percent rating may be assigned. A 20 percent evaluation will be assigned for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5260 pertains to limitation of flexion of the knee. This code provides that flexion limited to 45 degrees warrants a 10 percent evaluation and flexion limited to 30 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of extension of the knee. This code provides that extension limited to 10 degrees warrants a 10 percent evaluation, and, extension limited to 15 degrees warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. With both Diagnostic Codes 5260 and 5261, there are higher potentially-applicable ratings for disabilities resulting in additional decreased of motion. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Diagnostic Code 5263 provides a 10 percent rating for acquired, traumatic genu recurvatum, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. VA General Counsel, has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). In VAOGCPREC 9-2004 (September 17, 2004) VA General Counsel held that despite motion being in one plane the two motions, flexion (a retrograde motion) in bending the leg and extension (a forward motion) in straightening the leg, serve different functional roles, although both are necessary for normal function, such that they constitute two symptomatologies or manifestations that are not duplicative or overlapping such that separate ratings may be assigned for limitation of knee flexion (Diagnostic Code 5260) and for limitation of knee extension (Diagnostic Code 5261) without violating the rule against pyramiding, at 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. 69 Fed. Reg. 59,990 (2004). Evidence Private medical records from Dr. S. from January 2003 show that the Veteran complained of intermittent knee pain. There was no crepitus of the knee bilaterally, and there was full range of motion without laxity. Anterior and posterior drawer tests were negative. The examiner assessed the Veteran with bilateral knee pain, possibly arthritic in nature. VA outpatient treatment records also track the Veteran's symptoms, complaints, and treatment of his bilateral knee disability. In April 2003 the Veteran complained of constant knee pain, joint swelling, and throbbing. Drawer sign testing was negative. An inspection revealed no acute swelling. Patellar tracking was normal, bilaterally. The treating physician assessed the Veteran's condition as bilateral knee pain related to chondromalacia. In May 2003, there was mild crepitus on flexion and extension of the knees. X-rays of the knees demonstrated normal results. At a VA examination in June 2003, the Veteran's subjective complaints included persistent bilateral knee pain, particularly at night and with squatting. He indicated that he has missed one day of work due to his knee problems. He also stated that his right knee had buckled on two or three previous occasions. A physical examination of the knees revealed a genu recurvatum when standing. The Veteran's gait was described as normal. There was no effusion or medial or collateral laxity ligament. Range of motion testing revealed flexion and extension of 0 to 145 degrees. Lachman, anterior and posterior drawer and McMurray testing were all negative. There was slight hypermobility of the left and right patella and patellofemoral crepitation. The examiner determined that patellar pressure reproduced his pain. A diagnosis anterior knee pain and chondromalacia patellae, with symptoms more left than right, was assigned. The Veteran then underwent a consultation and examination with a non-VA orthopedic surgeon, Dr. B., in June 2003. The Veteran described essentially constant pain in the anterior portion of his knees. There was no swelling or locking, and the Veteran indicated that his knees had not given way for the past two years, though his knees snapped and clicked on occasion. He also indicated that walking up stairs and ladders caused increased pain. Physical examination demonstrated no instability or pain on varus or valgus stressing. The medial aspects of the patellae were tender. The examiner assessed the Veteran with bilateral patellofemoral syndrome with probable lateral tracking patellae. VA treatment in July 2003 showed right knee range of motion of 0 to 145 degrees, without instability/laxity. Left knee examination revealed patellofemoral crepitation, as well as hypermobility of the patella medially and laterally, but full range of motion without instability or laxity. An August 2003 note from the same provider recommended bilateral arthroscopy with ligamental release. In October 2003, the Veteran denied buckling of the knee joints. Examination of the right knee showed the knee joint was stable, but that there was slight lateral and collateral laxity. The right knee range of motion was 0 to 140 degrees. VA treatment records in December 2003 revealed hypomobility of the right patella with pain, but normal motion, and negative Lachman, drawer, and McMurray test results. X-rays showed a lateral tilt to the right patella, with lateral joint space narrowing. In February 2004, the Veteran underwent a right knee arthroscopy and shave chondromalacia medial femoral condyle. Post-surgical reports from March 2004 noted that right knee range of motion was to 100 degrees, and there was some residual swelling but no erythema. The right knee was described as stable with negative anterior and posterior drawer signs. Examination of the left knee showed full active range of motion. The joint was stable, with negative anterior and posterior drawer sign. The medial and collateral ligaments were stable. In September 2004, it was noted that the Veteran received left knee injections. He could bend his left knee to 85 degrees. There was discomfort with flexion. The knee joint was described as stable, and there was no evidence of erythema, effusion or warmth. The Veteran was afforded another VA examination in June 2005. He continued to complain of bilateral knee pain and stiffness. He indicated that he had undergone physical therapy and previously wore a brace. He also noted that he did not experience flare-ups or use assistive devices for walking. With respect to the disabilities' impact on work, the Veteran indicated he had trouble kneeling and squatting on the job as a carpenter. There was no tenderness to palpation above the knee, or redness or warmth. The scar on the Veteran' right knee was barely visible. The examiner also found no ankylosis. Range of motion testing revealed flexion to 112 degrees, which decreased to 106 degrees on repetition. The knees were stable to varus and valgus stress, and Lachman's testing was negative. There was no tenderness along the joint lines, but there was patellofemoral crepitus upon flexion and extension. The Veteran expressed pain in stress patellofemoral motion in both the right and left knee. An X-ray revealed mild changes of degenerative arthritis. During the Veteran's January 2006 Board hearing, he discussed his worsening bilateral knee disability. He indicated that his knees did not "track" correctly, and that his surgery did not correct his problem though he initially saw improvement. Other symptoms noted including instability, swelling, and throbbing pain, which occasionally worsened due to weather changes. He also indicated that this disability impacted his ability to work as a carpenter, as he had difficulty with activities such as squatting and climbing ladders, but denied missing work due to his knee pain. During treatment in March 2006, the Veteran described weakness in both knees, with buckling, more on the left than the right. Treatment records from June 2007 demonstrate bilateral findings of knee flexion of 0 to 140 degrees, without medial or lateral laxity, and with negative results for Lachman, drawer, and McMurray's testing. He underwent a VA examination in July 2011; at that time, he was experiencing symptoms of pain, weakness, and stiffness. Range of motion testing of the left knee showed flexion of 0 to 116 degrees, decreasing to 115 degrees following repetitive motion. Results for the right knee showed 0 to 115 degrees of flexion, decreasing to 108 degrees following repetitive motion. Both knees were stable to varus and valgus stress, and Lachman, drawer, and McMurray testing were normal bilaterally. He had mild genu valgum. The examiner noted that when the Veteran went from a flexed position to straightening of the knee on one of three occasions there was a lateral jerk of the patella near full extension - i.e., the patella tracked with an abnormal movement. According to the examiner, each patella was in a very slightly lateral position. Based on follow-up x-rays, the examiner, in an August 2011 addendum, diagnosed the Veteran with bilateral hypermobility of the patella. The Veteran was provided another VA examination in March 2012. He described essentially constant pain, requiring him to walk downstairs sideways when he first wakes up in the morning because of stiffness in his knee. He described difficulty getting up from a chair; the longer he sat, the more difficult it was to stand up. He informed the examiner that his right patella subluxed laterally at times. His knees experienced swelling, heat, redness, and tenderness. At times of flare-ups, he would modify his work, but never missed work because of his knees. As a construction foreman, he was able to adjust the amount of time he spent on his feet. The Veteran did not wear assistive devices, and could walk for good distances as long as he could keep moving. He was able to stand for a period of time. Upon physical examination, range of motion bilaterally began at 0 to 120 degrees of flexion, decreasing to 117 degrees of flexion after repetitive motion testing. There was pain on passive motion by the examiner, with crepitus, right more than left. Both knees were stable to varus and valgus testing, as well as Lachman, drawer, and McMurray testing. According to the examiner, the Veteran had a hypermobile right patella. X-rays showed a mild narrowing of the medial joint space bilaterally. Addressing specific questions from the Board's January 2012 remand, the examiner stated that there was a history of recurrent subluxations of the right patella, per the Veteran's history, but there was no instability of the knees. Most recently, following another Board remand, the Veteran underwent an examination for his knees in August 2013. At that time, he was diagnosed with minimal degenerative joint disease of the bilateral knees, without flare-ups. Range of motion testing showed bilateral flexion from 0 to 125 degrees, without evidence of painful motion, and without change following repetitive motion. Notably, weightbearing range of motion showed pain at 90 degrees, with difficulty straightening due to pain. The Veteran had pain on squatting. Lachman (anterior instability) and drawer (posterior instability) tests were normal, as was varus/valgus testing of the left knee. On the right, there was between 0 and 5 millimeters of medial-lateral (valgus/varus) instability. There was no tibial and/or fibular impairment. The Veteran denied any impact on his work due to his knees. Analysis In sum, the evidence shows that the Veteran has been diagnosed with bilateral arthritis of the knees and chondromalacia patella, with pain on motion. Concerning the right knee, testing of the Veteran's range of motion never revealed limited extension; all results showed extension to 0 degrees. He therefore does not meet the criteria for a compensable rating for loss of extension of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Concerning right knee flexion, the right knee has consistently demonstrated 90 degrees or more of flexion. The lowest measurement (90 degrees) was found with weightbearing as part of the August 2013 examination. Other measurements have consistently been 100 degrees or greater. Thus, he has not satisfied the criteria for a compensable rating for limited flexion, which would require a showing of flexion limited to 45 degrees or less, or an increased (20 percent) rating for that knee, which would require flexion limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Considering the DeLuca criteria, the evidence does not support a higher rating under either Diagnostic Code 5260 or 5261 based on of changes due to including additional range of motion loss due to fatigue, weakness, or incoordination following repetitive motion testing. DeLuca, 8 Vet. App. at 204-07. Almost all stability testing for the Veteran's right knee has been negative, indicating that his knee has been stable, with certain exceptions. In October 2003, there was slight lateral and collateral laxity in the right knee. The August 2013 examination report revealed "1+" medial-lateral instability under valgus/varus testing, showing between 0 and 5 millimeters of movement. It is noted that there has been a rating assigned to the left knee, for what was characterized as subluxation of the patella. Thus, a separate, unappealed rating contemplating instability has been assigned. There is no basis for a separate or higher rating for instability. As for the left knee, the Veteran has consistently demonstrated full (0 degrees) extension. He does not meet the criteria for a compensable rating for limited extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Similarly, the Veteran's flexion limitation is not compensable. Although generally his left knee flexion was greater than 100 degrees, he did demonstrate limitation of flexion to 85 degrees in September 2004, and to 90 degrees in August 2013 under weightbearing conditions; those measurements are insufficient for a compensable rating. He would have to demonstrate flexion limited to 45 degrees for a 10 percent rating, and as he is already in receipt of a 10 percent rating for his arthritis under Diagnostic Code 5010, would have to show flexion limited to 30 degrees for an increased rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Application of the DeLuca criteria to the evidence of limitation of motion for the left knee likewise does not suggest a compensable rating. DeLuca, 8 Vet. App. at 204-07. The evidence has consistently shown negative Lachman, drawer, and McMurray testing of the left knee. Except for the possible issue of hypermobility of the left patella, which is addressed in the remand, the evidence does not demonstrate instability or subluxation of the left knee that would warrant a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Although the Veteran has complained of knee buckling and weakness, symptoms which he is competent to identify, the Board finds more probative the numerous objective testing results showing that his left knees did not demonstrate instability or laxity. The Board also finds that a separate rating is not warranted for genu recurvatum. Although a single examiner noted genu recurvatum in June 2003, no other examiner has found such, despite many physical examinations occurring since. Further, objective extension measurements have not demonstrated more than 0 degrees of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The Board has considered the Veteran's statements, including his 2006 Board hearing testimony, regarding the severity of his right knee pain and the functional impact of this disability. The Veteran has been granted 10 percent disability ratings because of the functional impairment resulting from the disabilities. As explained above, the objective evidence shows that he does not have sufficient functional impairment to warrant a higher rating. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disabilities warranted more than 10 percent ratings. See Hart, 21 Vet. App. at 509-510. The Board has also considered whether the Veteran's bilateral knee disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's bilateral knee disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with his employment. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Further, the Veteran has repeatedly indicated that he has not missed time from work as a result of his bilateral knee disability. Therefore, the issue of entitlement to a total disability rating due to individual unemployability is not raised at this time. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee with mild degenerative changes, for the period prior to February 23, 2004 and since April 1 2004, is denied. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee, with mild degenerative changes, is denied. REMAND In the February 2012 Joint Motion, the parties agreed that the Board must consider whether the Veteran suffers from a separate knee disability of either knee due to "hypermobility of the patella" and "lateral tracking of the patella." Subsequently, as addressed in the Introduction, the RO granted a separate rating for "hypermobility and recurrent subluxation of the right patella in December 2012," rated at 20 percent disabling, and effective from July 27, 2011. The issue of a separate compensable rating for hypermobility of the right patella has been granted, and no aspect of that grant has been appealed; the issue is thus not before the Board at this time. The rating has been assigned under the provisions of instability or subluxation of the knee. In light of the evidence of record, and despite the December 2012 rating decision providing for a separate rating for hypermobility of the right patella, the Board remains unable to determine whether a separate evaluation for hypermobility and/or lateral tracking of the left patella is warranted. First, it is evident that, in addition to the June and July 2003 records addressed in the Joint Motion, there are other records suggesting such knee symptoms. For example, in an August 2011 addendum, following consideration of x-rays taken in conjunction with a July 2011 VA examination, an examiner determined that the Veteran did have hypermobility of the left patella. Subsequent examiners, including the most recent examiner in August 2013, have denied findings of hypermobility of the left patella. It is not clear to the Board that the Veteran's hypermobility of the left patella constitutes a separate disability from his current diagnoses of chondromalacia patella and arthritis, which essentially contemplates painful motion. As such, the Board is unable to determine whether a separate rating can be assigned without violating the regulations governing pyramiding. See 38 C.F.R. § 4.14. For instance, it is unclear if the hypermobility of the patella should be rated on other than painful motion. On remand, VA must obtain a new medical opinion addressing whether the hypermobility and/or tracking of the patella (whether or not presently diagnosed) is a separate disability from the Veteran's painful flexion of the knee. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC must obtain a medical opinion from an orthopedist concerning the Veteran's current knee disability. He or she must review this remand, the Veteran's VBMS claims file, and all relevant records in Virtual VA. The ensuing report must indicate that such a review occurred. Thereafter, the orthopedist must opine as to whether the Veteran's left patella symptomatology (including tracking and hypermobility) is a separate disability from his limited and painful motion of the knee. Specifically, would a rating for this disorder be contemplated in a rating for painful motion, or is it more commensurate with additional disability such as instability of the knee? If the orthopedist is unable to provide the requested opinion without resort to speculation, he or she must explain why such an opinion would be speculative. Only if a new examination is deemed necessary by the orthopedist should one be ordered. 2. After the development requested has been completed, the AMC/RO should review the opinion produced to ensure that it is in complete compliance with the directives of this remand. The AMC/RO must ensure that the examiner documented his or her consideration of VBMS and Virtual VA. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs