Citation Nr: 1337129 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-21 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for the service-connected gouty arthritis of the right knee. 2. Entitlement to increased evaluation for the service-connected residuals of left foot injury, initially rated as noncompensable prior to April 12, 2013, and rated at 10 percent from that date. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part granted service connection for disabilities of the right knee and left foot and assigned initial ratings of 10 percent and 0 percent (noncompensable), respectively, effective from May 1, 2008. In March 2011 the Veteran testified before the undersigned Acting Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of the hearing is of record. During the course of the appeal the RO granted an increased rating of 10 percent for the left foot disability, effective from April 12, 2013. The Board has recharacterized the issue on appeal to comport with this change. The Board previously remanded the case to the RO in February 2013 for additional development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. From May 1, 2008, the Veteran's right knee disability has been manifested by flexion to 105 degrees or better and extension to 2 degrees or better, with subjective painful motion but without instability and without any significant impairment consequent to the well-healed surgical scars. 2. From May 1, 2008, to April 11, 2013, the Veteran's left foot disability was manifested by full range of motion of the ankle and symptoms associated with pes planus and plantar fasciitis causing mild degree of functional impairment. 3. Since April 12, 2013, the Veteran's left foot disability has not been manifested by accentuated pain on manipulation or use of the foot; indication of swelling on use of the foot; characteristic callosities; or, objective evidence of marked deformity. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for gouty arthritis of the right knee are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013). 2. The criteria for an initial compensable rating for residuals of left foot injury prior to April 12, 2013, and a rating higher than 10 percent from that date, are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The present appeal arises from the initial award of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. 473, 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded). Thus, VA's duty to notify in this case has been satisfied. In any event, the Veteran has not pointed to any prejudice resulting from the timing or content of notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA has also made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the claims file includes service treatment records and relevant post-service treatment records and examination reports; the Veteran has not otherwise identified existing records that should be obtained. The Board previously reviewed the file and determined the Veteran should be afforded a new VA examination to record his current symptoms; this examination was performed in April 2013. The Board has reviewed the examination report and finds the RO substantially complied with the requirements articulated in the Board's remand instructions. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the AVLJ identified the issues to the Veteran, the Veteran volunteered his treatment history, and the Veteran's representative and the AVLJ asked questions concerning symptomatology related to his increased rating claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Applicable Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Degenerative arthritis is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, which 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 the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) to DC 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Where medical evidence shows claimant has arthritis, and where the diagnostic code applicable to the disability is not based on limitation of motion, such as DC 5257 (knee subluxation or instability), a separate rating may be assigned if there is additional disability due to limitation of motion. VAOPGCPREC 23-97 (July 1, 1997); see also Hicks v. West, 8 Vet. App. 417 (1995). Painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must consider whether a veteran's disabilities on appeal present 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) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Court has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, id. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities on appeal. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evaluation of Right Knee Disability Schedular Rating Criteria Historically, the Veteran has multiple pathologies in the right knee: gouty arthritis, which is systemic in multiple joints, as well as a knee injury requiring ACL repair caused by playing touch football in service. The Veteran's right knee disability is characterized as gouty arthritis of the right knee, status post anterior cruciate ligament (ACL) and meniscus surgery, including scars. Disabilities of the knee are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes (DC)s 5256 through 5263. The Veteran is not shown to have ankylosis (DC 5256), impairment of the tibia and fibula (DC 5262) or genu recurvatum (DC 5263), so those DCs are not applicable. Symptomatic removal of semilunar cartilage (DC 5259) has a maximum rating of 10 percent, so rating under that DC would present no advantage to the Veteran. The other DCs that are potentially relevant in this case are set forth below. Recurrent subluxation and lateral instability of the knee is rated under DC 5257 (other impairment of the knee). The rating criteria are as follows. A rating of 10 percent is assigned for slight impairment; a rating of 20 percent is assigned for moderate impairment; and, a rating of 30 percent is assigned for severe impairment. The terms "slight," "moderate" and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Dislocation of semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint is rated under DC 5258. A rating of 20 percent is the only rating under this DC. Limitation of flexion of a leg is rated under DC 5260. A rating of 0 percent is assigned for flexion is limited to 60 degrees; a rating of 10 percent is assigned for flexion limited to 45 degrees; a rating of 20 percent is assigned for flexion limited to 30 degrees; and, a rating of 30 percent is assigned for flexion is limited to 15 degrees. Limitation of extension of a leg is rated under DC 5261. A rating of 0 percent is assigned for extension limited to 5 degrees; a rating of 10 percent is assigned for limitation of extension to 10 degrees; a rating of 20 percent is assigned for extension limited to 15 degrees; a rating of 30 percent is assigned for extension limited to 20 degrees; a rating of 40 percent is assigned for extension limited to 30 degrees; and, a rating of 50 percent is assigned for extension limited to 45 degrees. Normal range of motion (ROM) of the knee is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Also, a claimant can have separate ratings for limitation of motion under DCs 5260/5261 and for recurrent subluxation or lateral instability under DC 5257. Scars are rated under the criteria of 38 C.F.R. § 4.118; the rating criteria of which changed during the course of the appeal effective from October 23, 2008. Where a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies, unless Congress provided otherwise or permitted VA to do otherwise, and VA does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCREC 11-97 (Mar. 24, 1997). However, revised statutory or regulatory provisions may not be applied to any time period prior to the effective date of the change unless the revised criteria are intended to have a retroactive effect. That is not the case here. Thus, the Board will consider the claim under the former criteria for the entire appeal period, and under the new criteria for the period when they became effective, and whichever results in the rating most beneficial to the Veteran (if either) will be applied. Under the criteria in effect prior to October 23, 2008, under DC 7801 a rating of 10 percent is assigned for scars other than the head, face or neck that are deep or that cause limited motion, if they have an area or areas exceeding 6 square inches (39 sq. cm.). Under DC 7802, a rating of 10 percent is assigned for scars other than the head, face or neck that are superficial and do not cause limited motion, if they have an area or areas of 144 square inches (929 sq. cm.) or greater. Under DC 7803, a rating of 10 percent is assigned for superficial scars that are unstable. Under DC 7805, a rating of 10 percent is assigned for superficial scars that are painful on examination. Under DC 7805, all other scars are to be rated based on limitation of function of the affected part. 38 C.F.R. § 4.118 (2008). Notes to the DCs cited above show that a "deep" scar is one associated with underlying soft tissue damage; a "superficial" scar is one not associated with underlying soft tissue damage; and, an "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under the criteria in effect as of October 23, 2008, under DC 7801 a rating of 10 percent is assigned for scars not of the head, face or neck that are deep and nonlinear if they have an area or areas of at least 6 square inches (39 sq. cm). Under DC 7802, a rating of 10 percent is assigned for scars other than the head, face or neck that are superficial and nonlinear, if they have an area or areas of 144 square inches (929 sq. cm.) or greater. DC 7803 has been deleted. Under DC 7804, a rating of 10 percent is assigned for one or two scars that are unstable or painful; a rating of 20 percent is assigned for three or four scars that are unstable or painful. Under DC 7805, other scars (including linear) are evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2013). A note to DC 7804 states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The definitions of "deep," "superficial" and "unstable" scars were unchanged from the previous criteria. Evidence and Analysis The Veteran had a VA general medical compensation and pension (C&P examination in December 2007 in which he complained of aching, burning pain within the knee joint, 7/10 in severity, occurring weekly and lasting 30-40 minutes. Precipitating factors included driving for more than one hour; the Veteran stated he was hardly able to walk when exiting a car. Pain was alleviated by "walking it out." The Veteran endorsed occasionally wearing a knee brace for stability. He denied any loss of work time due to the condition. Physical examination showed the Veteran to have an even gait and erect posture; he ambulated steadily without aids or braces. He sat easily during interview, with few position changes for comfort. There were two well-healed scars on the knee, one measuring 2 cm. x 0.25 cm. and the other measuring 2 cm. in diameter; both scars were stable and non-tender without evidence of adhesion or restriction of function of the knee joint. The knee was stable to varus and valgus stress; anterior and posterior drawer tests were negative. Lachman's and McMurray's tests were negative. There was no evidence of joint line tenderness; patellar grind was noted in the left knee but not the right. ROM of the right knee was flexion of +2 to 130 degrees and extension of -2 degrees. The Veteran complained of pain with movement, as evidenced by facial grimace, but there was no clinical evidence of any additional functional loss due to the DeLuca factors. There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement or guarding. X-ray of the right knee showed spurring along the inferior margin of the patella, probably degenerative, and mild osteophytes formation along the margin of the patella. The examiner's impression was scars and degenerative joint disease (DJD) of the right knee status post ACL tear and arthroscopy. The examiner noted clinical evidence showed ROM from 2-130 degrees with flexion limited by body habitus, and evidence of full strength and functioning. The Veteran had another VA general medical C&P examination in January 2009, performed in support of his claim for service connection for carpal tunnel syndrome. In regard to the right knee, the Veteran reported intermittent problems, with remissions. He denied current treatment. The Veteran complained of pain exacerbated by damp/cold weather and cramping/binding with activity such as going up stairs. Usual frequency was every 2-3 weeks and duration was 3-7 days. He endorsed pain, stiffness and decreased joint speed of motion; he denied deformity, instability, weakness, incoordination, locking, effusions or inflammation. He reported ability to stand 15-30 minutes and to walk more than one-quarter mile but less than one mile. Examination showed the Veteran to be morbidly obese, with normal gait. There was crepitus but no grinding or instability. ROM of the right knee was 0-120 degrees without pain on motion and without additional limitation of motion after repetition. The Veteran was noted to be currently employed on a full-time basis. The examiner diagnosed "chronic right knee pain" and noted impairment of ADLs as follows: prevents exercise and sports; moderate impairment of chores, recreation and traveling; mild impairment of shopping and driving; no impairment of other ADLs (feeding, bathing, dressing, toileting or grooming). The examiner also noted no significant impairment of employment. The most significant functional impairment was increased knee pain with constant positions and with climbing stairs, etc. In his substantive appeal, received in June 2009, the Veteran asserted entitlement to higher rating due to frequent pain in the knee "most of the time." The Veteran stated that after riding in a vehicle he could barely walk due to the pain incurred, and that when sitting for any length of time he would have to move the knee frequently to relieve numbness. The Veteran testified before the Board in March 2011 that his knee has pain while standing and while sitting for a protracted period; the knee is also numb on the outer edge. This was a problem in his previous job, which required protracted standing, but is now less of a problem because he now has a job that enables him to walk around more. Squatting and kneeling also cause problems, but the knee is not unstable. Protracted sitting, such as in automobiles and airplanes, is very painful, and the knee is sensitive to changes in the weather. He does not currently receive treatment for the right knee. The scars on his knee do not bother him. The Veteran's most recent VA C&P examination was performed in April 2013, by an examiner who reviewed the claims file. The Veteran complained that prolonged standing and weight bearing activities aggravate his knee pain. Knee pain is alleviated with rest and ibuprofen, which he typically has to take once per week. On some days the pain is worse than others, but has ever been so incapacitating as to keep him in bed. ROM was flexion to 105 degrees, with pain at 110 degrees; extension was to 0 degrees without evidence of pain; the knee did not hyperextend. The Veteran reported increased pain and decreased motion after repetitive motion, but the measured ROM was unchanged after repetitive movement. Testing was positive for tenderness to palpation. Muscle strength was 5/5 and stability tests were normal. Scars were noted on examination, but such scars were not painful or unstable and had a total area less than 6 square inches (39 square cm.). X-ray showed degenerative changes. The examiner diagnosed ACL tear, torn meniscus and gouty arthritis. In regard to functional impairment, the examiner stated the Veteran had encountered no attacks of gouty arthritis since service. The scars did not cause pain or restrict the motion of the knee or surrounding tissue. X-ray was positive for mild DJD but the Veteran's report shows he only needs to take pain medication infrequently. The Veteran's symptoms are aggravated by his body habitus (severe obesity) and wearing steel-toed shoes for prolonged periods at work. There are no functional impairments or chronic residuals that prevent the Veteran from gainful employment. Review of the evidence shows the Veteran's flexion prior to onset of pain, as rated by DC 5260, was 130 degrees in December 2007, 120 degrees in January 2009 and 105 degrees in April 2013; all of which these measurements are noncompensable, and in fact are significantly better than the 45 degrees required for a compensable (10 percent) rating. The Veteran's extension prior to onset of pain, as rated by DC 5261, was 2 degrees in December 2007 and 0 degrees in January 2007 and April 2013; these also are noncompensable results and significantly better than the 10 degrees or higher required for compensable rating. The Veteran is diagnosed with arthritis of the knee and thus is entitled to minimum rating for loss of flexion of the joint. Burton, 25 Vet. App. 1; Schafrath, 1 Vet. App. 589, 592. The schedular minimum under DC 5260 is 0 percent (for limitation to 60 degrees), so the Veteran's current 10 percent rating satisfies the requirement. His current rating also satisfies the minimum 10 percent rating for painful arthritis specified in Lichtenfels, 1 Vet. App. 484. The Veteran has complained of subjective instability, but there has been no instability demonstrated on clinical examination. The Veteran has had three VA medical examinations during the course of the period under review (December 2007, January 2009 and April 2013), all of which demonstrated that the knee was stable during appropriate diagnostic procedures. In addition to these examinations, there is no clinical evidence of instability in any VA or non-VA treatment note. Accordingly, rating under DC 5257 is not for consideration. The Veteran has several surgical scars on the right knee, but he has not asserted any pain or limitation of function associated with those scars. Also, examination has shown these scars to be superficial, not tender or painful and not productive of any limitation of function of the joint. Accordingly, separate compensation for the scars is not warranted. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence cited above the Board has carefully considered the lay evidence offered by the Veteran in the form of his testimony before the Board, his correspondence to VA and his statements to various medical examiners and providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, even affording the Veteran with full competence and credibility in reporting his right knee symptoms over time, the lay and medical evidence of record simply does not show that the Veteran's right knee disability has met the criteria for a rating higher than the currently-assigned 10 percent. Rather, the competent evidence of record shows the Veteran's ROM of the right knee is not limited even close to the level required for a higher rating and there is no clinical evidence of instability or subluxation or clinical evidence of scars that are painful, or deep, or limit function. Further, a rating of 10 percent is consistent with the minimal degree of occupational and functional impairment noted by the VA examiners in January 2009 and April 2013. The Board has considered whether "staged ratings" are for application, per Fenderson, 12 Vet. App. 119. However, the Veteran is not shown to have satisfied the criteria for a rating higher than 10 percent during any discrete date range during the period under review, so "staged rating" is not appropriate. The Board has also considered whether referral for extraschedular evaluation is appropriate. In this case, the manifestations of the service-connected knee disability (limitation of motion due to pain and associated weakness, fatigability, lack of endurance and incoordination) are specifically contemplated by the schedular criteria as amplified by DeLuca and Burton. The schedular rating criteria for disabilities of the knee reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule. Accordingly, the assigned schedular evaluations are adequate, and referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Finally, the Veteran has not asserted, and the evidence of record does not suggest, that he is unemployable solely due to the right knee disability either alone or in combination with his other service-connected disabilities, and indeed he asserted during his most recent VA examination that he is currently employed. The Board accordingly finds that a claim for TDIU is not raised by this appeal. Rice, 22 Vet. App. 447. In sum, the Board has found the criteria for a rating higher than 10 percent for the service-connected right knee disability are not met. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Evaluation of Left Foot Disability Schedular Rating Criteria The Veteran's left foot disability is characterized as pes planus and plantar fasciitis, ankle equinus and degenerative joint disease. Pes planus (flat foot) is rated under the provisions of 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired). Under this DC, a rating of 0 percent is assigned for mild disability (symptoms relieved by built-up shoe or arch support). A rating of 10 percent is assigned for moderate disability (weight-bearing line over or medial to great toe; inward bowing of the tendo Achilles; pain on manipulation or use of the feet, bilateral or unilateral). A rating of 20 percent is assigned for severe unilateral pes planus (objective evidence of marked deformity such as pronation or abduction; pain on manipulation and use accentuated; indication of swelling; characteristic callosities). A rating of 30 percent is assigned for pronounced unilateral disability (marked pronation; extreme tenderness of plantar surfaces of the feet; marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances). The Veteran's disability has historically been rated under the criteria of 38 C.F.R. § 4.71a, DC 5284 (foot injuries, other). The rating criteria are as follows. A 10 percent rating is assigned for moderate injury; a 20 percent rating is assigned for moderately severe injury; and, a 30 percent rating is assigned for severe injury. A note to the DC states that a 40 percent rating is assigned for actual loss of the foot. Also potentially applicable is DC 5271 (limited motion of the ankle). Under this DC, a rating of 10 percent is assigned for moderate limitation, and a rating of 20 percent is assigned for marked limitation. Normal ROM for the ankle is dorsiflexion from 0-20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Evidence and Analysis The Veteran had a VA general medical C&P examination in December 2007 in which he complained of heel pain, continuous since he snapped the plantar fascia of the foot; he also reported loss of arch in the left foot after that incident. He denied surgery and stated that wearing orthotic inserts was very helpful. He denied unsteadiness or history of falls and also denied using ambulatory aids. Foot pain was exacerbated by standing more than 30 minutes, and the Veteran's walking was limited to approximately 2 miles; the Veteran denied limitation on sitting or driving. He characterized the pain as a daily aching pain in the arch, 6/10 in severity and lasting until he was able to take the weight off his feet. He took ibuprofen for pain control and denied any loss of work time due to the condition. Physical examination showed the Veteran to have an even gait and erect posture; he ambulated steadily without aids or braces. The feet were warm, dry and sensate to light touch. There were no callosities or unusual shoe wear that would indicate abnormal weight bearing. The feet appeared normal, with no evidence of deformity, scars or lesions. There was no evidence of functional loss of any of the toes. Gait was normal, but with evidence of abduction of the right foot by 15 degrees with ambulation. Strength was 5/5 against resistance on dorsiflexion, plantar flexion and inversion/eversion. The bilateral feet and toes had identical ROM; there was no additional limitation of function after repetitive use. Heel, toe and tandem walk demonstrated good coordination. There was no evidence of abnormal posture while standing, squatting, supination, pronation or rising on the toes and heels. The non-weight bearing arches were 15 degrees left (versus 20 degrees right), and the weight bearing arches were 5 degrees left (versus 10 degrees right). There was no objective evidence of painful motion, edema, instability, weakness or tenderness and no objective or clinical evidence to show additional limitation of function under the DeLuca factors. X-ray of the left ankle showed mild spurring possibly indicative of mild degenerative change, as well as calcification possibly related to prior plantar fasciitis. The examiner's impression was pes planus with underlying DJD of the left foot and ankle. The examiner noted that examination showed full ROM, strength and functioning of the left foot and ankle. There was evidence of decreased arch with weight bearing but no evidence of pain along the plantar fascia and no evidence of ankle joint laxity, instability or tenderness to palpation. There was no evidence of heel spurs but evidence of record showed diagnosis of plantar fasciitis and ankle equinus after repeated ankle sprains. The Veteran had another VA general medical C&P examination in January 2009, performed in support of his claim for service connection for carpal tunnel syndrome. In regard to the left foot, the Veteran reported intermittent problems, with remissions. He endorsed treatment with arch supports and over-the-counter pain medication, with "fair" response to treatment. The Veteran complained of stiffness and deformity of the left foot, with weekly flare-ups consisting of severe pain in the plantar aspect on waking in the morning; such pain was alleviated with weight bearing. Flare-ups were associated with difficulty climbing stairs. The Veteran endorsed using orthotic inserts to assist ambulation. Examination showed the Veteran to be morbidly obese, with normal gait. The left foot showed flat foot but no deformity of the foot or toes. The weight bearing line was not over or medial to the great toe and there was no pain at rest or with manipulation. There was slight pronation of the calcaneus. The Veteran was noted to be currently employed on a full-time basis. The examiner diagnosed "left foot pain" and noted impairment of ADLs as follows: mild impairment of chores, exercise, sports and recreation; and, no impairment of other ADLs (shopping, traveling, feeding, bathing, dressing, toileting, grooming or driving). The examiner also noted no significant impairment of employment. In his substantive appeal, received in June 2009, the Veteran asserted entitlement to higher rating due to interference with standing and weight bearing. He reported having to continuously shift his weight from one leg to the other due to pain in the left foot (and right knee). He also asserted problems with weight bearing first thing in the morning when getting out of bed, at which time he could barely get around. The Veteran testified before the Board in March 2011 that protracted standing causes problems because he has to shift his weight back and forth between the right knee and the left foot. He stated that the left ankle "rolls" very easily, although he has not had any significant falls since service. The Veteran stated that he was recently identified as having a bone spur on his left heel, which adds to the problems associated with plantar fasciitis. The Veteran's most recent VA C&P examination was performed in April 2013, by an examiner who reviewed the claims file. In regard to the left ankle, the Veteran complained of frequent "giving way" of the ankle toward the outside but denied using an ankle brace. He denied the use of ambulatory aids, unsteady gait or history of falling and denied any treatment for the disability since leaving service. He admitted to having gained at least 100 pounds since discharge from service. He denied flare-ups related to the ankle. ROM of the left ankle was plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater, both without evidence of painful motion; there was no additional limitation of function or motion after repetitive use. The ankle was not painful to palpation and strength was 5/5. There was no laxity of the joint. X-ray of the ankle showed calcification of the plantar fascia. The examiner diagnosed ankle sprain and old caudes equinus, but stated current ankle equinus was not shown because the Veteran has full ROM of the ankle without tenderness or pain observed or verbalized. In regard to other symptoms of the left foot, the Veteran stated his current orthotics were very helpful, although he continued to experience heel pain with prolonged weight bearing activities such as standing on concrete or wearing steel-toed shoes for 8-12 hours. On examination, there was no pain elicited with manipulation of the feet and no extreme tenderness on the plantar surface of the feet. There were no callosities characteristic of flatfoot. Examination confirmed decreased longitudinal arch height on weight bearing but there was no evidence of marked deformity of the foot and the weight bearing line did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles tendon and did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. There were no scars on the feet. X-ray of the foot showed flatfoot deformity with calcification of the plantar aponeurosis but did not show stress fracture or osteoarthritis. The Veteran was not observed to have metatarsalgia, Morton's neuroma, hammer toes, hallux valgus/rigidus or claw foot (pes cavus). . The examiner diagnosed ankle sprain, pes planus, old ankle pes planus, DJD, old plantar fasciitis and old caudes equinus (the examiner stated the Veteran was not shown to have current caudes equinus). In regard to the totality of disability, the examiner stated the Veteran experiences flat feet only with weight bearing and has no symptoms of plantar fasciitis. The Veteran takes ibuprofen, with good results, and has good results from orthotics used for pes planus. The examiner noted that the Veteran has calcification of the left heel that could be related to plantar fasciitis and is common in obese people; the examiner also noted that many individuals would experience painful feet after standing for more than 8 hours. His condition is currently assessed as "mild" or "minimal" due to pain relief provided by orthotic shoe inserts. Review of the evidence above shows the Veteran has not had compensable limitation of motion of the ankle. The VA examination in January 2009 is silent in regard to ROM of the ankle, but the examiners in December 2007 and April 2013 both affirmatively characterized the ankle as having normal ROM. The Veteran has not complained of ankle pain with movement or with palpation, nor is such pain demonstrated on examination (the Veteran has complained of pain in the arch, but not in the ankle). The Veteran complained during examination in April 2013 of ankle "roll" but there was no laxity on examination. Thus, although the Veteran has various diagnosed disorders of the ankle (DJD, old ankle sprain and old caudes equinus) there is no indication of a current compensable disability of the ankle under any pertinent DC. Turning from the left heel to the left foot, the Veteran has consistently complained of pain in the arch and the heel. However, the rating schedule does not provide a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Compensation for pain is essentially based on functional loss of a joint due to pain, as articulated in 38 C.F.R. § 4.40 and in Burton, but in this case no joints are involved and those criteria do not apply. The rating criteria of DC 5276, specific to pes planus, defines "mild" symptoms (noncompensable) as those relieved by built-up shoes or arch support, and describes "moderate" as when (1) the weight-bearing line is over medial to the great toe, (2) there is inward bowing of the tendo Achilles, or (3) with pain on manipulation or use of the feet. The first two criteria cited are specifically not shown on examination; the only criterion of higher evaluation is the Veteran's consistent subjective complaint of pain in the heel and arch. However, functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant; see 38 C.F.R. § 4.40. During all three VA examinations of record (December 2007, January 2009 and April 2013) the Veteran demonstrated no pain or tenderness during objective examination. Further, all three VA examiners characterized the Veteran's overall level of impairment as "mild" or "minimal," which is consistent with the noncompensable rating under DC 5276. The RO granted the Veteran an increased rating of 10 percent effective from April 12, 2013, based on a determination that the VA examination on that date showed "pain on use of the feet" as defined in DC 5276 (the DC for pes planus). Although the RO used the criteria listed under DC 5276, the rating decision still lists the disability as being rated under DC 5010-5284. In any event, the Board finds no evidence since April 12, 2013, of "severe" pes planus (marked deformity, accentuated pain on manipulation and use, indication of swelling on use or characteristic callosities) warranting a 20 percent evaluation. In fact, as noted above, the April 2013 VA examination showed no pain elicited with manipulation (much less "accentuated pain"), no extreme tenderness on the plantar surface of the feet, and no callosities characteristic of flatfoot. Examination confirmed decreased longitudinal arch height on weight bearing but there was no evidence of marked deformity of the foot and the weight bearing line did not fall over or medial to the great toe. VA must consider whether a disability may be rated under alternative DCs that are more advantageous to the claimant. Schafrath, 1 Vet. App. 589, 593. The Veteran does not have weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toe (DC 5282) or malunion/nonunion of the tarsal or metatarsal bones (DC 5283). Accordingly, those DCs are not available for rating the Veteran's disability. With respect to DC 5284 (foot injuries, other), the Board finds that the Veteran's disability is not manifested by symptomatology that more clearly approximates a moderate disability prior to April 12, 2013, or a moderately severe foot disability from April 12, 2013 to present. On the contrary, the Board finds that the totality of the Veteran's foot symptomatology results in no more than a mild disability picture, particularly in light of the December 2007 VA examination findings of normal appearing feet with no callosities indicating abnormal weight bearing; no evidence of deformity; no evidence of functional loss of any of the toes; identical range of motion of the feet and toes between the disabled left foot and the non-disabled right foot, and no abnormal posture while standing, squatting, supination, pronation or rising on the toes and heels. Additionally, the January 2009 VA examination findings included: no deformity of the foot or toes; no pain with manipulation, and the weight bearing line was not over or medial to the great toe. Finally, the April 2013 VA examination report includes findings of ROM of the left ankle was plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater, both without evidence of painful motion; no additional limitation of function or motion after repetitive use; the ankle was not painful to palpation; strength was 5/5; there was no laxity of the joint; no pain elicited with manipulation of the feet; no extreme tenderness on the plantar surface of the feet; no callosities characteristic of flatfoot; no evidence of marked deformity of the foot; and the Veteran was observed to not have metatarsalgia, Morton's neuroma, hammer toes, hallux valgus/rigidus or claw foot (pes cavus). The examiner concluded that the Veteran experiences flat feet only with weight bearing and has no symptoms of plantar fasciitis. The examiner noted that the Veteran has calcification of the left heel that could be related to plantar fasciitis and is common in obese people; the examiner also noted that many individuals would experience painful feet after standing for more than 8 hours. The examiner assessed the Veteran's foot condition as "mild" or "minimal" due to pain relief provided by orthotic shoe inserts. The Veteran's representative filed an Informal Hearing Presentation in July 2013 arguing that the Veteran should be separately compensated for pes planus. The Board disagrees. The Veteran could arguably be separately rated for his diagnosed plantar fasciitis and pes planus, but as explained above in detail, the overall impairment for his service-connected foot disability (taking into consideration the totality of the symptoms, whether caused by plantar fasciitis or pes planus or obesity) is characterized as only "mild." Additionally, it is not even clear the Veteran currently has plantar fasciitis as the December 2007 and January 2009 VA examiners did not diagnose plantar fasciitis and the April 2013 VA examiner diagnosed "old" plantar fasciitis and noted that the Veteran has no current symptoms of plantar fasciitis. In any event, compensating the Veteran separately for his foot pain under both plantar fasciitis and pes planus would essentially compensate the Veteran twice for the same symptomatology. VA regulation 38 C.F.R. § 4.14 specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. The Board has considered the lay evidence offered by the Veteran. Layno, 6 Vet. App. 465, 470. The Veteran is competent to testify in regard to the onset and continuity of symptomatology associated with his left foot disability, but even affording him full competence and credibility in reporting his symptoms over time the lay and medical evidence of record simply does not show that his disability has met the criteria for a rating higher before and since April 2013 for the reasons explained above. The Board has considered whether referral for extraschedular evaluation is appropriate. However, the rating criteria for disabilities of the foot and ankle reasonably describe the Veteran's disability level and symptomatology (pain, flat feet and some limitation of motion) and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule. Accordingly, the assigned schedular evaluations are, therefore, adequate, and referral for extraschedular consideration is not warranted. See Thun, 22 Vet. App. 111, 115. Finally, the Veteran is shown to be fully-employed and the record does not indicate that the Veteran is unable to obtain and maintain substantially gainful employment, so a claim for TDIU is not raised by the issue on appeal. Rice, 22 Vet. App. 447. In sum, the Board has found the criteria for a compensable rating for the service-connected left foot disability were not met prior to April 12, 2013, and the criteria for a rating higher than 10 percent have not been met from that date. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER An initial disability rating in excess of 10 percent for gouty arthritis of the right knee is denied. An initial compensable rating for residuals of left foot injury prior to April 12, 2013, and a rating in excess of 10 percent from that date, is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs