Citation Nr: 1337624 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-33 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a rating in excess of 10 percent for hypertension. 2. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied ratings in excess of 10 percent for hypertension and for right knee osteoarthritis. The Veteran then testified at Decision Review Officer hearings at the RO in February 2010 and in April 2011. A transcript of the each hearing is associated with the claims folder. The Veteran initially requested a Travel Board hearing at the RO before a Veterans Law Judge (VLJ), but subsequently withdrew this request in writing in September 2011. In January 2013, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following further evidentiary development: (1) obtaining updated VA treatment records, to include pertinent treatment records from the Milwaukee VA Medical Center dated since October 2011; (2) associating with the Veteran's physical or Virtual VA claims file all of the records contained on the Social Security Administration (SSA) compact disc, received in August 2009; and (3) scheduling VA examinations to determine the current level of severity of the Veteran's right knee osteoarthritis and hypertension. The record reflects that updated VA treatment records were obtained and VA examinations were obtained in February 2013; thus, the Board is satisfied that there was substantial compliance with those parts of the January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). With regard to associating with the physical or Virtual VA claims file all of the records contained on the SSA compact disc, the Board notes that although this was not accomplished, the Board has reviewed the contents of the compact disc in total. FINDINGS OF FACT 1. The Veteran's hypertension is manifested by the requirement of continuous medication, with diastolic pressure predominantly less than 110, and systolic pressure predominantly less than 200. 2. The Veteran's service-connected right knee disability has been manifested by no more than chronic pain, swelling, and flare-ups of pain, with range of motion limited to 0 degrees of extension and 100 to 125 degrees of flexion, with no clinical manifestation of instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101 (2012). 2. The criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for generic notice, that is, 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 (Fed. Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2009 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the April 2009 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available service and post-service treatment records for the Veteran, to specifically include updated VA treatment records. Further, the Board notes that the Veteran underwent VA examinations in May 2009, January 2010, and February 2013. The Board notes that each examination included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses, which were supported in the record. The examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Laws and Regulations Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when 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). However, when the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Hypertension The Veteran's service-connected hypertension is rated under Diagnostic Code (DC) 7101 which provides for a 10 percent disability rating for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or for an individual who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Higher evaluations are provided for greater diastolic and systolic blood pressure levels 38 C.F.R. § 4.104, DC 7101. VA treatment records showed that the Veteran had blood pressure readings of 142/86 in May 2007; 130/86 in June 2007; 142/86 in September 2007; On a VA examination in October 2007, it was noted that the Veteran's blood pressure had been found to be uncontrolled due to not taking medication as prescribed. The Veteran reported he had started seeing a private physician a year ago for his medical problems, including hypertension, and that he was seen every three months and continued taking his medication. He denied any new signs or symptoms of hypertension, stating that when his blood pressure was elevated he still got a lightheaded feeling and could hear his heart beat pounding in his head. He monitored his blood pressure at home twice a week, reporting systolic pressures ranging from 130 to 150 mmHg and diastolic pressures ranging from 80 to 110 mmHg. He reported that shortly after his last VA examination he had to quit working as a construction worker because of a non-service-connected right hand and wrist surgery, and denied any effects on his ability to work related to his hypertension. On examination, three consecutive blood pressures were as follows: 152/90, 150/92, and 150/92. The diagnosis was chronic essential hypertension unchanged since the last evaluation. VA treatment records showed that in April 2008, the Veteran was hospitalized for uncontrolled hypertension, and the primary diagnosis was hypertensive urgency. He was started on Labetalol, and his blood pressure responded nicely with systolic blood pressures in the 160s - 150s. Thereafter, he was seen as an outpatient, and his blood pressure readings were 197/119, 204/124, and 180/118. In May 2008, his blood pressure was 157/96. In early July 2008, his blood pressure was 165/96. A few weeks later in July 2008, his readings were 184/122, 176/114, 172/123, 177/115, and 174/110, and the assessment was that his hypertension was currently uncontrolled. It was noted that the Veteran was adhering to a low salt diet and was compliant with medications. In November 2008, he was seen for hypertension monitoring and his blood pressure at that time was 187/105, 191/109, 190/110, 192/118. The assessment was resistant hypertension. In February 2009, he reported that his blood pressures had never been well-controlled, and that his blood pressure usually runs from 140-150/90s-low 100s. Further, his blood pressures were recorded as 165/104 (standing), 133/79 (sitting), and 170/100 (sitting). The assessment included hypertension, uncontrolled. In March 2009, his readings were 190/104 and 180/98. In April 2009, he reported checking his blood pressures at home two times a week, and that it usually ranged from 150-200/90-100, and that this morning it was 84/48. It was noted that he was on "nine antihypertensives at home", and on discharge his blood pressure was stable. On a VA examination in May 2009, it was noted that the Veteran's last rating examination was in October 2007, and that he had had a long-standing history of hypertension with noncompliance issues of taking his medications. At that time, his hypertension was being managed with several medications and no side effects. He complained of a lightheaded feeling when his blood pressure was elevated. It was noted that when he was hospitalized in April 2008 for hypertensive urgency, he had not refilled two of his three medications recently. He was hospitalized in April 2009 for an unrelated condition, and it was noted that his blood pressure was fairly normal but it was felt that this was due to being dehydrated. It was noted that he did not have a hypertensive emergency during this hospital stay. It was noted that his blood pressure had since then been better managed. He reported monitoring his blood pressure at home every morning, reporting a blood pressure of 150/88 today. He denied side effects from his blood pressure medications. He reported he continued to be unemployed since 2004, and claims he quit his job of 13 years working for the City of Milwaukee, repairing street lights, due to an on the job injury to his right wrist, requiring surgery. Currently he felt he could not work, claiming that when his blood pressure is uncontrolled he had headaches that he felt affected his ability to maintain employment. Physical examination revealed blood pressure reading of 148/86. The diagnoses included chronic essential hypertension, stable. The examiner opined that the Veteran's service-connected hypertension did not impose any vocational impairment. In a statement dated in July 2009, the Veteran reported his blood pressure had been running 200/160 for one year, and that he was in the hospital because of his blood pressure. A VA treatment record dated in October 2009, showed that the Veteran was seen in the emergency room and had a blood pressure of 138/86. On a VA examination in January 2010, the Veteran reported he continued to be troubled with hypertension, and that since May 2009, his blood pressure medication regimen had changed. On examination his blood pressure was 112/80, and it was noted that in October 2009 it was 137/80 and in November 2009 it was 140/76. VA treatment records showed that in January 2010, the Veteran's blood pressure was 139/88, and in February 2010, readings were 158/100, 148/91, 135/90, and 143/82. In February 2010, the Veteran testified that he took six medications in the morning and six at night for his high blood pressure. VA treatment records showed that the Veteran's blood pressure readings were 135/82 and 153/96, in early March; 132/80 on a VA examination later in March 2010; 150/97, 138/91, and 145/89, later in March 2010; and 152/94, 146/84, 149/89, 142/88, and 156/99 in April 2010. In June 2010, he complained that his blood pressure was always high and that he was on four different medications, and on examination his blood pressure reading was 151/106. In July 2010, his blood pressure readings on examination were 171/116 and 169/103. He reported his blood pressure was in the 140s/80s at home, and the diagnosis was hypertension, controlled. Thereafter, treatment records showed that his blood pressure readings were 128/83 and 126/88 in August 2010; 143/79 in November 2010; and 153/96 and 163/96 in December 2010. In April 2011, the Veteran testified that he took seven medications in the morning and six at night for his high blood pressure. He testified that the last time he took his blood pressure, it was 170/100, but that at the time he was awarded the 10 percent rating for hypertension, his blood pressure reading was 150 over 80 or 90. VA treatment records show that the Veteran had blood pressure readings of 150/70 in February 2011; 129/77, 133/76, and 160/93 in March 2011; 177/99 and 156/92 in April 2011; 162/107, 160/95, 166/104, and 170/110 in May 2011; 139/84, 150/80, and 142/87 in October 2011; 156/74, 170/81, 157/90, and 140/76 in February 2012; 131/79 in April 2012; 132/85, 145/88, and 138/90 in May 2012; 128/65, 125/60, 158/99, 165/87, and 118/69 in September 2012; 146/94, 126/80, 148/92, 163/97, and 144/78 in October 2012; 162/93 in December 2012; 152/81 and 162/96 in January 2013. On a VA examination in February 2013, it was noted that the Veteran took continuous medication for his hypertension, and that since 2006, his doctors had been steadily adding pills and changing the doses. His recent blood pressure readings were noted as 154/90, 161/93, and 162/96. The examiner opined that the Veteran's hypertension did not impact his ability to work, that there was no evidence of cardiac enlargement, and the current severity was moderate. In considering the Veteran's claim, as noted above, to obtain the next higher rating of 20 percent, for hypertension, the evidence of record must indicate diastolic pressure readings predominantly 110 or more, or systolic pressure must be predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. A careful review of the record, however, shows that the Veteran's blood pressure readings, dated from May 2007 through February 2013, have varied widely. While most of the blood pressure readings for this period of time have remained below 200 (for systolic) and below 110 (for diastolic), there have been blood pressure readings which have exceeded 200 (for systolic pressure) and 110 (for diastolic pressure). In that regard, the Board notes that in October 2007 the Veteran reported that his diastolic readings at home ranged from 80 to 110. In April 2008, July 2008, and November 2008, the Veteran had several blood pressure readings (clinically recorded) which exceeded 200 (for systolic pressure) or exceeded 110 (for diastolic pressure), and at that time it was noted that his blood pressure was uncontrolled. Thereafter, however, VA treatment records starting in February 2009 noted blood pressure readings again below 200 (for systolic pressure) and 110 (for diastolic pressure), with the exception of a reading of 171/116 in July 2010, and a reading of 170/110 in May 2011. In reviewing the record, the Board notes that there have been at least 80 blood pressure readings clinically recorded from May 2007 through February 2013, and that of those 80, only about 12 readings have exceeded 200 (for systolic pressure) or exceeded 110 (for diastolic pressure). Thus, based on these findings, it cannot be said that there has been a showing of diastolic pressure readings predominantly 110 or more or systolic pressures predominantly 200 or more; rather, the record shows that most of the blood pressure readings taken during the appeal period have fallen short of diastolic pressure readings predominantly 110 or more, or systolic pressures predominantly 200 or more. The Board acknowledges the Veteran's contentions that he has had problems with uncontrolled blood pressure, and that he is on multiple medications to control his blood pressure. However, the Board also notes that he has reported monitoring his blood pressure at home, and that his blood pressure has been under control on occasion. The preponderance of the evidence is therefore against a finding that the Veteran's hypertension has been manifested by diastolic pressure readings predominantly 110 or more, or systolic pressure predominantly 200 or more during the appeal period. 38 C.F.R. § 4.104, DC 7101. The Board does not mean to diminish the significance of any of the Veteran's episodes of elevated hypertension. However, while the record contains references to elevated blood pressure, the Board notes that only a small portion of his blood pressure readings have approximated the criteria for an increased, 20 percent rating for hypertension. Thus, the Board concludes that the record simply does not show that such elevated blood pressure readings predominate, as required by the rating schedule. The Board also notes that the Veteran takes multiple medications for his hypertension, and this is contemplated in the currently assigned 10 percent rating. Accordingly, based on the foregoing, the Board concludes that the criteria for a rating in excess of 10 percent for hypertension have not been met or approximated at any time during the appeal period. 38 C.F.R. §§ 4.7, 4.104, DC 7101. In summary, the Board finds that the preponderance of the evidence is against the assignment of any higher rating for the service-connected hypertension, and the claim must therefore be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Knee Osteoarthritis By August 2007 rating decision, the RO granted service connection for minor osteoarthritis, right knee, and assigned a 10 percent disability rating, effective from February 28, 2006, pursuant to DC 5003 and DC 5260. DC 5003 provides that degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Ratings based on limitation of motion of a joint cannot be combined with a rating for arthritis of the same joint. 38 C.F.R. § 4.71a, DC 5003. DC 5260 provides a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion of the leg is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. Higher evaluations are provided for greater limitation of motion. 38 C.F.R. § 4.71a, DC 5261. Full range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DC 5257 provides ratings based on recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. A claimant who has arthritis or limitation of motion, and instability of a knee may be rated separately under DCs 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. The evidence of record includes VA records which reveal that an x-ray of the right knee in December 2006 rendered impressions of Pelligreni-Stieda and a suggestion of minor osteoarthritis. On a VA joints examination in May 2009, it was noted that the Veteran's last knee examination was in June 2007, and that his VA records since then were negative for any exacerbated right knee pain. He currently complained of intermittent right knee pain, and rated these flares as 10 out of 10, occurring once or twice a month, with the most intense pain lasting for the first of the three to four day duration of the flare. After the first day, the pain decreased to a 7 out of 10, and lasted another two to three days in which these flares were associated with swelling, warmth, and giving out. The Veteran denied any locking up, and his flares were relieved with over-the-counter analgesics and ice. He denied the use of a knee brace or assistive devices He was not sure what triggered the flares, claiming they could occur upon waking in the morning. During the flares, his pain limited his walking to one block, and repetitive use of the stairs, and standing no more than 10 minutes. In between flares, the Veteran claimed he had mild pain with any sort of kneeling or squatting, which he avoided. He denied any limitation to walking or standing in between flares. He denied any interference with his activities of daily living (ADLs) or needing any assistance; however, his brother came to his house when he was having a flare of his knee in order to check on him. Physical examination of the right knee showed slightly decreased range of motion of 0 to 120 degrees of flexion with complaints of pain before range of motion. He complained of pain along the medial aspect and the suprapatellar area at 120 degrees of flexion. On a VA orthopedic examination in May 2009, On a VA x-ray of the right knee taken in May 2009, there was no joint space narrowing or marginal osteophytes, and no significant change noted compared to the previous examination. The impression was no significant findings. In a statement dated in July 2009, the Veteran reported that the VA examiner in 2009 had misquoted him by saying his knee flared up twice a month. The Veteran indicated he had stated that his condition was chronic and that he experienced pain and swelling every day. He reported having quite a bit of tenderness and weakness associated with his condition, and that his range of mobility was limited. On physical examination, his right knee had slightly decreased range of motion of 0 to 120 degrees, with no complaints of pain, but the Veteran complained of pain along the medial aspect and suprapatellar area at 120 degrees of flexion. The examiner noted that the pain subsided in the neutral position, but recurred with each repetition of motion, with no evidence of weakness, fatigue, or incoordination after three repetitions of motion. It was noted that he complained of tenderness with palpation along the medial joint line, with no evidence of swelling, erythema, heat, or crepitus. There was good stability of the knee, with negative McMurray, Lachmann, and Drawer signs. Quadriceps strength was 5 out of 5. The diagnoses included chronic mild right medical collateral ligament strain, with no radiographic evidence of arthritis. The examiner opined that the Veteran's service-connected right knee would affect his ability to do any repetitive squatting, kneeling, or climbing of stairs, ladders, and scaffolds, and that therefore, the Veteran could not perform any heavy manual labor type work, but he could do light manual labor and sedentary type work without restrictions. A VA record dated in October 2009, showed that the Veteran was admitted to the ER with complaints of right knee pain. The assessment was right knee pain; which was most likely from DJD (degenerative joint disease). Later in October 2009, on examination the Veteran was noted to have slight swelling in the right knee compared to the left, no warmth to touch, and no swelling or redness, no clicking noted. Crepitus was, however, noted. In December 2009, the Veteran was seen for an initial evaluation for physical therapy for his right knee. A right knee x-ray was noted to show a small pointed bony prominence or spur at the proximal end of the medial femoral condyle, probably at the site of the attachment of the medial collateral ligament, and mild popliteal and proximal tibial artery calcification, and an otherwise normal right knee. He reported that his pain was 4 out of 10 when walking into the clinic, and that he had symptoms off and on for a few years, and that aggravating activities included going up steps and prolonged walking and standing. Alleviating activities for the Veteran included elevating the leg, pain medications, and rest. The Veteran reported he had been given a knee sleeve but had not used it. He only got locking of the knee when it swelled up. Objective examination showed that knee range of motion was within normal limits. The assessment was that the Veteran presented with decreased activity tolerance secondary to right knee pain, and that he was limited with steps, prolonged standing, and walking, and that his signs and symptoms were consistent with degenerative joint disease of the right knee. VA treatment records showed that in December 2009, the Veteran was issued a "knee brace hinged wrap around size" for the right knee. Also, in December 2009, he started physical therapy for his knee. At that time he reported increased pain higher in both knees, but was not sure why, other than maybe the weather. He reported that the knee brace and exercises had helped reduce the stress on the knee. In January 2010, he was again seen for physical therapy and reported his knee was doing a lot better that day, and that his knee pain had been up and down, but overall he was better able to manage his knee pain, and the exercises had been going well. On a VA examination in January 2010, the Veteran reported he had a flare-up and discomfort that day, to a pain level of 9. He noted that he usually had a pain level of 5, and questioned whether the snow and cold were contributing to the flare-up. He reported having flare-ups approximately once a day, lasting hours to an entire day, and precipitated by frequent utilization of the stairs and alleviated with ibuprofen. He denied heat and redness, but maintained tenderness in the medial portion of the right knee. It was noted that he had been seen in the ER in November 2009 for pain and swelling and was referred to physical therapy, which he noted had slightly improved his discomfort. He had been using a splint for the right knee which had provided extra stability and improved discomfort. He noted pain with resting and walking, and felt that his activity was limited to a few flights of stairs or walking across the street, and he had a limited ability to kneel and squat. On examination the Veteran was noted to have an antalgic gait with his right lower extremity, and used a cane in his left hand. There was medial joint line tenderness, no effusion, full extension and flexion limited to 80 degrees. McMurray's and Lachmann's tests were negative, he tolerated varus and valgus stresses at 0 and 30 degrees, and he had pain in his right knee with resisted flexion. He reported knee discomfort throughout the 80 degrees of flexion and his return to full extension. Three repetitions were performed without incoordination, lack of endurance, or fatigue. The diagnosis was right knee strain, and the examiner opined that knee range of motion was "limited greater than the expected". In February 2010, the Veteran testified that he had swelling in his knee at times, and that it was hard to walk up and down steps. He had been in therapy, but was released and told to continue the exercises. He testified that when his knee hurt the worst, he could not do anything and just sat around the house. He reported horrible knee pain at night, and if he squatted he had problems getting back up. He testified his right knee pain was at a 9 out of 10 on the pain scale, on a day to day basis. In April 2011, the Veteran testified that because of his right knee pain, sometimes he could not walk up stairs. He took over the counter medications, including ibuprofen and Aleve. He testified he had right knee swelling, that he was told to use a cane whenever his knee was bothering him, and that a change in weather increased his right knee pain. He testified that at times he did not come out of his house because of his right knee, especially when it snowed. He testified that standing on his knee caused problems, unless he had something to prop himself on. He testified that the doctors had told him to keep going with his knee exercises. On a VA examination in February 2013, the Veteran complained that his right knee swelled more than it used to, and that the frequency of the pain was once a month, for one week, at level 7. He noted that his knee did not lock up. He last worked in 2006, due to a right hand injury. He did not report flare-ups impacting his knee function. Range of motion of the right knee was to 110 degrees on flexion, with pain beginning at 80 degrees, and extension to 0 degrees with no objective evidence of painful motion on extension. After three repetitions of range of motion testing, right knee range of motion remained unchanged, with no additional limitations of motion. It was noted that the Veteran did have functional loss and/or impairment of the right knee, including less movement than normal, pain on movement, and swelling. It was also noted that there was tenderness to palpation of the right knee, and muscle strength testing was normal. Joint stability tests of the right knee revealed normal findings, and there was no evidence or history of recurrent patellar subluxation/dislocation. It was noted that his gait was slightly antalgic, and that he occasionally used a cane. It was also noted that imaging studies of the knee had been performed and showed degenerative or traumatic arthritis of the right knee, but no x-ray evidence of patellar subluxation. It was also noted that an x-ray in November 2009 showed no significant degenerative changes. The examiner noted that the Veteran was currently having an acute flare up of swelling, therefore, it was difficult to determine accurately the underlying chronic disability. The examiner indicated that it was uncertain why the 2507 stated that the Veteran had osteoarthritis when there had been inadequate x-ray evidence of it on the previous examination. The examiner noted that there was evidence of osteoarthritis on today's x-ray report; however, given this new finding and the lack of history of trauma or surgery to the knee due to service, it was more likely as not that this osteoarthritis was related to his years of post service labor jobs, and less likely as not related to service. The Veteran essentially contends that his service-connected right knee disability is more severe than contemplated by the 10 percent rating assigned. Based on the evidence of record, however, the Board concludes that a rating in excess of 10 percent for the service-connected right knee disability is not warranted. In that regard, the objective findings of record simply do not show or approximate right knee extension limited to 15 degrees, or flexion of the left knee limited to 30 degrees, nor is there comparable functional impairment of the right knee that would warrant the assignment of any higher rating. While the Veteran consistently complained of right knee pain, up to 8 on the pain scale, and there were findings of ongoing right knee pain, as well as swelling, tenderness, limitation of motion, and pain on motion, his right knee did not exhibit significant atrophy, weakness, or other signs of deformity reflecting significantly greater knee impairment. Further, the Board is required to consider the effect of pain, weakness, fatigability, incoordination, and excess motion when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. The Board has considered the Veteran's complaints of pain, flare ups, and swelling, and all evidence of record related to limitation of motion and pain on motion, in determining that the preponderance of the evidence is against the claim of entitlement to a rating greater than 10 percent. The record reflects that during the appeal period, the Veteran's functional impairment of the right knee has been manifested primarily by chronic pain, including flare-ups, and some loss of range of motion. Thus, any functional loss due to pain experienced by the Veteran, has been adequately covered by the 10 percent rating assigned. Additionally, the Veteran has not identified any other functional limitation which would warrant a higher rating under any applicable rating criteria. The Board is required to consider the effect of pain when making a rating determination, and has done so in this case, but the Rating Schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, the Board finds that the criteria for a rating in excess of 10 percent for the service-connected right knee has not been met. Further, the Board concludes that the competent evidence of record does not support a separate compensable rating for the right knee, under DC 5257, because the evidence does not objectively show slight recurrent subluxation or lateral instability. Although the Veteran has complained of his knee locking, he has not complained of giving way or instability, and on objective examination, his right knee has been consistently found to be stable, or with no instability. Thus, the Board concludes that the competent evidence of record does not approximate a finding of slight subluxation or slight instability, as required for the assignment of any separate 10 percent rating under DC 5257, for the right knee. In an effort to afford the Veteran the highest possible disability rating, the Board has considered his right knee disability under all other appropriate diagnostic codes; however, he has never been diagnosed with or been shown to have ankylosis of the knee, impairment of the tibia and fibula, or genu recurvatum. Therefore, DCs 5256, 5262, and 5263 do not apply. Under DC 5258, a 20 percent rating is warranted where the semilunar cartilage is dislocated with frequent episodes of locking, pain, and effusion into the joint. The Board notes that while the Veteran has reported episodes of pain and at least one episode of locking, he has not reported, and the evidence does not show, frequent episodes of locking. Thus, a higher or separate rating under DC 5258 is not warranted. In summary, the Board finds that the preponderance of the evidence is against the assignment of any higher or separate rating for the service-connected right knee disability. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, supra. 3. Extraschedular Evaluation In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that there has been no showing that the Veteran's disability picture for his hypertension and for his right knee disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. Each of the rating criteria (DC 5003, 5620, 5621, and 7101) provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for each disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis for either the service-connected hypertension or right knee disability is not warranted. See Thun v. Peake, supra. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for hypertension is denied. A rating in excess of 10 percent for right knee osteoarthritis is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs