Citation Nr: 1336967 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-18 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for a right knee strain with chondromalacia prior to September 28, 2010, and a rating higher than 10 percent thereafter. 2. Entitlement to an initial compensable rating for a left knee strain with chondromalacia prior to September 28, 2010, and a rating higher than 10 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran had active military service from January 1987 to September 1992 and from January 1999 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in a May 2009 rating decision, the RO, in relevant part, granted service connection for a bilateral knee strain and assigned an initial zero percent evaluation, effective May 1, 2008. The same month, the Veteran disagreed with the assigned initial rating. Subsequently, in a December 2010 rating decision, the RO increased the disability evaluation to 10 percent for a right knee strain with chondromalacia and 10 percent for a left knee strain with chondromalacia, effective September 28, 2010, the date of the Veteran's VA examination that indicated worsening had occurred. A review of the Virtual VA paperless claims processing system includes VA treatment records dated from 2010 to 2012. Other documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not include any documents. In a statement received in July 2011, the Veteran appears to be raising the issue of entitlement to an earlier effective date for the grant of service connection for his bilateral knee disabilities. As this matter has not been previously addressed, it is referred to the agency of original jurisdiction (AOJ) for appropriate consideration. The issue of entitlement to an increased rating for posttraumatic stress disorder has been raised by the record in a September 2012 statement, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is also referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period prior to September 28, 2010, the Veteran's bilateral knee strain had not manifested by locking, ankylosis, recurrent subluxation, lateral instability, impairment of the tibia and fibula or genu recurvatum; flexion of the right and left knees had never been limited to 45 degrees or less and extension had never been limited to 10 degrees or more. 2. For the period after September 28, 2010, the Veteran's bilateral knee strain with chondromalacia causes pain and limitation of activity, but has not manifested by locking, ankylosis, recurrent subluxation, lateral instability, impairment of the tibia and fibula or genu recurvatum; flexion of the right and left knees has never been limited to 30 degrees or less and extension is not limited to 15 degrees or more. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for the period prior to September 28, 2010, for bilateral knee strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). 2. The criteria for a rating higher than 10 percent for the period from September 28, 2010, for bilateral knee strain with chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in January 2008. Where, as here, service connection has been granted and initial ratings have been assigned, the claims of service connection have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disabilities does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, post-service treatment records, and lay statements have been associated with the record. VA attempted to obtain service treatment records from the Veteran's period of service from January 1987 to September 1992, but received a negative response to its requests and has made a formal finding of their unavailability. Additionally, during the appeal period, the Veteran was afforded VA examinations in September 2008, September 2010 and July 2012. The Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for rating purposes. Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. As the issues on appeal are for higher ratings, consideration of whether the criteria for the current ratings are met is not necessary and the analyses below will focus on whether the Veteran meets the criteria for the next higher rating. The Veteran's knees have been rated under Diagnostic Code 5260. In evaluating the Veteran's current level of disability, the Board will consider all applicable Diagnostic Codes. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is to be rated as arthritis degenerative under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under Diagnostic Code 5260, limitation of flexion of the knee to 60 percent is noncompensable, and limitation of flexion to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating, and limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the knee with flexion between 10 degrees and 20 degrees. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. Under Diagnostic Code 5258, a 20 percent rating is warranted for cartilage, semilunar dislocated, with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provides that a 10 percent rating is warranted for surgically removed cartilage that is symptomatic. A semilunar cartilage is one of the menisci of the knee joint. A 10 percent rating is also the highest schedular evaluation allowed under Diagnostic Code 5259. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, malunion with slight knee or ankle disability warrants a 10 percent rating; malunion with moderate knee or ankle disability warrants a 20 percent rating; malunion with marked knee or ankle disability warrants a 30 percent rating; and nonunion of the tibia and fibula, with loose motion, requiring a brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. Id. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. More recently, the VA General Counsel held that separate ratings could be provided for limitation of knee extension and flexion under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Factual Background Historically, a May 2009 rating decision granted service connection for a bilateral knee strain. Each knee was rated at 0 percent disabling under DC 5260, effective May 1, 2008. The Veteran filed a notice of disagreement with the rating and a December 2010 rating decision increased the disability evaluation to 10 percent for a right knee strain with chondromalacia and 10 percent for a left knee strain with chondromalacia under DC 5260, effective September 28, 2010, the date of the Veteran's VA examination that indicated worsening had occurred. The Veteran claims that he is entitled to an initial compensable rating prior to September 28, 2010, and a rating higher than 10 percent thereafter. As noted above, the Veteran has questioned the effective date assigned for the grant of service connection for his bilateral knee strain, and the matter has been referred to the AOJ. However, the Board will proceed to consider the subject of this appeal, which is the propriety of the disability ratings assigned on and after May 1, 2008, which is the current effective date assigned for the grant of service connection for the bilateral knee strain. On VA Examination in September 2008, the Veteran reported that he avoids running, bending, and going up stairs to prevent his bilateral knee pain. The Veteran informed the examiner that walking or standing for long periods of time can cause an onset of pain. He reported that he is able to stand for more than one, but less than three hours, and he is able to walk one to three miles. The Veteran complained of instability and weakness in the left knee as well as pain and stiffness in both knees. He denied episodes of dislocation, subluxation, locking, and effusion. The Veteran complained of severe weekly flare-ups. Examination indicated evidence of abnormal weight bearing. Examination of the right and left knee showed that extension in both knees was 140 to 0 degrees without pain. Flexion of the right and left knee was 0 to 140 degrees without pain. Neither knee showed limitation of motion on repetition. Examination of both knees showed no loss of bone or part of a bone, arthritis, ankylosis, or crepitation. Examination of both knees showed no masses, clicks, snaps, grinding, or instability. There were no knee abnormalities, to include patellar, meniscus, tendon or bursa abnormalities. The Veteran's X-ray findings were normal. The VA examiner diagnosed the Veteran with bilateral knee strain. The VA examiner noted that there were no significant effects on the Veteran's general occupational effect. On VA Examination in September 2010, the Veteran reported that he avoids going up stairs and squatting whenever possible. He reported episodes of stiffness on cold mornings. He also reported occasional sensation on giving way of the knees. The examiner noted no history of inflammatory arthritis, flare-ups, swelling, or locking of the knees. The Veteran reported that he does not use any assistive devices. The VA examiner noted that the Veteran walked without difficulty, but had a slight limp. Examination of the left and right knee both showed that the Veteran lacked 5 degrees of extension. The Veteran could flex both knees from 5 to 135 degrees. There was no pain on motion and no additional limitation of motion after repetitive motion. On the right knee, the VA examiner noted some retropatellar crepitation on range of motion testing. The right knee had a positive patellar grind test, and the left knee had a slightly positive patellar grind test. There was no swelling, tenderness to palpation, or ligamentous instability. The Veteran's X-ray findings were normal. The VA examiner diagnosed the Veteran with bilateral knee strain with chondromalacia patella. The VA examiner noted that the Veteran is a full-time college student and works in a convenience store. He found that the Veteran is able to perform his job duties and is independent in his activities of daily living. On VA Examination in July 2012, the Veteran reported that his knees are usually okay in the morning. He reported that by the end of the day, his knees are stiff and sore. He reported difficulty going up stairs, standing for a prolonged time, and squatting. The Veteran complained of a rare flare-up in his left knee, where it will pop, give way, and then swell. He reported that he works at a convenience store and has a chair behind the counter. Examination of the right knee showed that the Veteran could flex the knee from 0 to 125 degrees, with painful motion at 110 degrees. Examination of the left knee showed that the Veteran could flex the knee from 0 to 135 degrees, with painful motion at 110 degrees. The Veteran's knees did not have any limitation of extension or painful motion on extension. There was no additional limitation of motion after repetitive motion, however, there was less movement than normal, pain on movement, swelling, and disturbance of locomotion. The Veteran had tenderness or pain to palpation on both knees. The strength in the Veteran's lower extremities was 5/5 and there was no sign of edema. The Lachman test and Posterior drawer test were normal. There was no instability or subluxation. The VA examiner noted that there was a clicking of the patella and a tenderness of the medial patella facet and the patella tendon on the right knee. There was also a minimal edema on the right knee. The VA examiner noted that the left knee had more exquisite tenderness of the medial patella facet and the patella tendon. There was also a mild edema on the left knee. Although the left knee patella did not click, the VA examiner felt fluid under the knee. The VA examiner noted that the Veteran walked with a slight limp and decreased knee range of motions. The Veteran's X-ray findings were normal and did not show patellar subluxation. The VA examiner diagnosed the Veteran with chronic chondromalacia pain with patella femoral syndrome. The VA examiner found that the Veteran's knee condition impacted his ability to work and noted that the Veteran would not tolerate any position requiring standing all day without breaks, or one in which he is required to walk stairs or squat repeatedly. VA treatment records indicate that in August 2012, the Veteran complained of bilateral knee pain. The Veteran reported that his left knee has a tendency to pop and bend like it is giving way. The Veteran declined any pain medication and reported that he takes Tylenol for the pain. At his personal hearing before a Decision Review Officer in September 2012, the Veteran testified that his knees are stiff and this affects his ability to walk. The Veteran stated that he is unable to run and he has difficulty with stairs. He testified that he has to stoop and bend at work, which aggravates his knees. Analysis The Board finds that, for the period prior to September 28, 2010, the evidence shows that the Veteran's bilateral knee strain had not manifested by locking, ankylosis, recurrent subluxation, lateral instability, impairment of the tibia and fibula or genu recurvatum; flexion of the right and left knees had never been limited to 45 degrees or less and extension had never been limited to 10 degrees or more. Prior to September 28, 2010, limitation of flexion or extension of either knee was not shown to be compensable. In this regard, the September 2008 VA examiner specifically found that the right and left knees both flexed to 140 degrees and extended to 0 degrees. Nor are there any other findings of record prior to September 28, 2010, indicating that flexion was limited to 45 degrees or less or that extension was limited to 10 degrees or more. Accordingly, a compensable rating is not warranted under Diagnostic Code 5260 or 5261. 38 C.F.R. § 4.71a. Moreover, there was no pain found on motion during that examination. Also, prior to September 28, 2010, instability or subluxation was not shown. Although the Veteran reported instability in his left knee during the September 2008 examination, the Board ultimately places more probative weight on the results of objective physical examination by competent health care specialists, which have consistently showed no evidence of lateral instability. Accordingly, a compensable rating under Diagnostic Code 5257 is not warranted. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has a compensable level of functional loss. 38 C.F.R. §§ 4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). Here, the Board notes the Veteran's reported impairment of function in occupational settings, such as his difficulty with walking or standing for long periods of time, climbing stairs, and bending, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. In this regard, the September 2008 VA examiner specifically found that after repetitive motion, flexion was still to 140 degrees and extension was still to 0 degrees with no pain on motion. The September 2008 VA examiner also noted that there were no significant effects on the Veteran's general occupational effect. Nor are there any other objective findings indicative of a compensable level of functional loss prior to September 28, 2010. Accordingly, a compensable rating based on such loss is not warranted. The Board finds that, for the period after September 28, 2010, the Veteran's bilateral knee strain with chondromalacia causes pain and limitation of activity, but it has not manifested by locking, ankylosis, recurrent subluxation, lateral instability, impairment of the tibia and fibula or genu recurvatum; flexion of the right and left knees had never been limited to 30 degrees or less and extension had never been limited to 15 degrees or more. From September 28, 2010, limitation of flexion or extension of either knee does not more nearly approximate the criteria for the next higher rating of 20 percent for limitation of motion. In this regard, the September 2010 VA examiner specifically found that the right and left knees both flexed to 135 degrees and lacked 5 degrees of extension. Additionally, the subsequent July 2012 VA examination of the right knee showed that the Veteran could flex the right knee from 0 to 125 degrees, with painful motion at 110 degrees. Examination of the left knee showed that the Veteran could flex the left knee from 0 to 135 degrees, with painful motion at 110 degrees. Nor are there any other findings of record since September 28, 2010, indicating that flexion of either knee was limited to 30 degrees or less or that extension of either knee was limited to 15 degrees or more. The Veteran does have some limitation of motion, due to pain; however, this is encompassed in the current 10 percent rating under Diagnostic Code 5260. Accordingly, a rating higher than 10 percent is not warranted under Diagnostic Code 5260. Because the September 2010 examination did not show a compensable limitation of extension and the subsequent July 2012 examination did not demonstrate any limitation of extension, a separate compensable rating under Diagnostic Code 5261, in consideration of 38 C.F.R. § 4.59, is not warranted. Also, from September 28, 2010, instability or subluxation was not shown in either knee. In this regard, the September 2010 VA examiner found that there was no ligamentous instability. The July 2012 VA examiner specifically found that Lachman and Posterior drawer testing was all negative. The examiner also specifically found that there was no mediolateral instability present. There are no other findings from this time frame indicative of instability or subluxation. Although the Veteran reported instability in his left knee during his August 2012 VA treatment and during the September 2010 and July 2012 examinations, given all the objective findings tending to indicate that the knee was stable, the weight of the evidence is against a finding that any left knee instability was present. Accordingly, a compensable rating under Diagnostic Code 5257 is not warranted. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown, 8 Vet. App. 202 (1995). Here, the Board notes the Veteran's reported impairment of function in occupational settings, such as his difficulty with walking or standing for long periods of time, climbing stairs, and bending, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. In this regard, the September 2010 and the July 2012 VA examiners specifically found that there was no evidence of additional loss of motion after repetitive use. Although the July 2012 VA examiner found that there was less movement than normal, pain on movement, swelling, and disturbance of locomotion after repetitive use, this is encompassed in the current 10 percent rating under DC 5260. Additionally, the September 2010 examiner also found that the Veteran was a full-time college student and employee, and was independent in his daily activities. Thus, given the specific objective findings, the lack of any other objective findings indicative of any significant functional loss and the Veteran's reports of significant functional ability, the Board finds that the weight of the evidence is against a finding that he has any functional loss greater than that contemplated by the existing 10 percent rating. For both before and after September 28, 2010, the Board has considered whether a higher rating could be assigned under any other rating codes but as ankylosis, dislocation or symptomatic removal of the semilunar cartilage, nonunion or malunion of the tibia and fibula and genu recuurvatum are not shown, ratings under these other codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Accordingly, the preponderance of the evidence is against assignment of an initial compensable rating for the Veteran's service connected bilateral knee disability prior to September 28, 2010, and a rating higher than 10 percent thereafter. As the greater weight of evidence is against the claim, there is no doubt on this matter that could be resolved in his favor. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected bilateral knee strain with chondromalacia. The Veteran's bilateral knee strain with chondromalacia is manifested by pain and limitation of motion. The ratings assigned contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial compensable rating for a right knee strain with chondromalacia prior to September 28, 2010, and a rating higher than 10 percent thereafter is denied. Entitlement to an initial compensable rating for a left knee strain with chondromalacia prior to September 28, 2010, and a rating higher than 10 percent thereafter is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs