Citation Nr: 1338111 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-14 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating in excess of 10 percent for status post posterior crusciate ligament (PCL) surgery of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active military service from August 2001 to December 2001; from January 2003 to May 2004; from June 2005 to January 2008; from February 2009 to May 2010; and from May 2011 to May 2012. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA) that, in relevant part, granted service connection for post-operative residuals of a left knee injury and assigned a 10 percent rating effective February 1, 2008. In October 2012, the Board remanded this matter. In February 2013, the RO granted the claim of service connection for a skin disability; thus, this matter is no longer before the Board. FINDING OF FACT The Veteran's left knee disability results in flexion of the knee limited to 135 degrees, but without pain; no limitation of motion on extension; no lateral instability or subluxation; and with pain apparently due to surgical hardware. CONCLUSION OF LAW During the appeal period, the criteria for an initial rating in excess of 10 percent for status post PCL surgery of the left knee are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.20 4.71a, Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in September 2008 and November 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. With regards to the claim for a higher initial rating for his left knee disability, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date 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 the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than the 10 percent he received. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. Since the Veteran was being called to active duty when he was originally scheduled for a VA examination, he was thereafter scheduled after he again separated from service. This examination report, dated in March 2012, is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, 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). The Board notes that the intent of the rating 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 Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The service treatment records reflect that the Veteran underwent PCL surgery in 2007 during service. A medical assessment in January 2008 revealed that the Veteran continued to have pain and did not have full use of the knee. The post-service 2008 records showed that the Veteran complained of left knee pain in a localized area beneath the scar and on the medial aspect of the knee. In June 2008, the Veteran also reported that his stability was better than pre-surgery, but now he had pain. He indicated that he had occasional swelling and some popping. Examination revealed that there was full range of motion on extension and flexion. Collateral ligaments were intact. There was some laxity of the anterior crusciate ligament (ACL) in comparison to the normal right knee. There was no crepitation. There was tenderness in the scar area. A September 2008 letter from a VA physician's assistance indicated that the Veteran had been seen for his left knee disability. A magnetic resonance imaging (MRI) showed an inflammatory response to the hardware used to repair the knee. The Veteran was given an injection to alleviate symptoms and was instructed to avoid physically exertional activities. An August 2008 evaluation revealed that the Veteran ambulated with a normal gait and station and had excellent range of motion, alignment and stability of both knees and specifically with posterior drawer testing of the left knee. He had no edematous or skin change problems. An MRI from January 2008 revealed some edematous change around the femoral tunnel and bioabsorbable screw site, along with a mild, soap-bubbly appearance just distal and medial to the screw along that portion of the bony surface of the medial femoral condyle. A computerized tomography (CT) and x-rays indicated a femoral tunnel and screw at that location, along with a posterior tibial screw. There was point tenderness over the medial scar of the outlet of the femoral tunnel medially, and although there was no significant crepitus, the Veteran was point tender to that region. The assessment was left knee pain, probably secondary to foreign body giant cell reaction about the bioabsorbable screw. In September 2008, the Veteran applied for service connection for a left knee disability. He stated that he had residuals of his inservice injury, but was nonspecific. In conjunction with his claim for benefits, the Veteran was scheduled for VA examinations in January 2009. However, he subsequently canceled the examinations because he had received mobilization orders to return to active duty for deployment in February 2009. In an April 2009 rating decision, service connection was established for status post PCL surgery of the left knee. A 10 percent rating was assigned under Diagnostic Code 5257, even though it appears that the Veteran was primarily rated on the report of pain on motion, particularly since it was noted that there was no instability. The effective date of service connection was February 1, 2008 (the first day of the month after the Veteran separated from service in January 2008). The Veteran was then redeployed from February 2009 to May 2010; and from May 2011 to May 2012. For the periods that he was on active duty, his service-connected benefits were not payable. During service beginning in February 2009, the Veteran was seen for knee complaints, described as pain in the lateral aspect and anterior region of the knee. Tenderness to palpation of the knee was noted, but there was no limitation of motion, visible abnormalities, muscle spasms, or muscle weakness. It was noted that the pain was under the well-healed linear scar over the area lateral to the left patella. With regard to the scarring, there was a linear scar located lateral of the left patella, a large well-healed curved scar in the upper left calf area, and point scars on the periphery of the knee. X-rays showed a questionable lytic lesion as well as mild degenerative joint disease. There was no fracture of dislocation and alignment was normal. The postoperative changes and surgical screw were also noted. In November 2010, the Veteran was afforded a VA examination. The Veteran reported that he did not have deformity or incoordination, but did have giving way, instability, pain, weakness, stiffness and decreased speed. He also reported that where the top screw is located, there was a calcium build-up at the left medial upper aspect of the patella. He also indicated that he had flare-ups. He had to walk slower, and was unable to run. The examiner indicated that the Veteran's gait was normal and there was no evidence of abnormal weight bearing. There was no crepitation, grinding, instability (despite the Veteran's complaints), patellar abnormality, meniscus abnormality, abnormal tendons or bursae of other knee abnormalities. There was no evidence of pain on motion which was full from zero to 140 degrees. There was no limitation with repetitive motion nor was there pain. The examiner noted a well-healed surgical scar at the medial upper aspect of the left knee and posterior patella consistent with surgical history of PCL reconstruction. The Veteran reported that he experienced most of the discomfort at the area of the medial upper aspect of the patella, at an area that he indicated he was told a screw may have calcium build-up. There were no objective findings of pain on movement of the affected knee joint. X-rays showed previous surgical changes with screw fixation at the upper tibia. There was no demonstrable acute fracture or effusion at this time. The examiner stated that there were no significant effects on the Veteran's employment. With regard to his usual activities of daily living, there was only moderate impairment for exercise and travel and mild impairment for recreation. The Veteran was afforded a VA examination in December 2012 pursuant to the Board's October 2012 remand. At that time, the Veteran's prior surgical history was reviewed, with the examiner noting that while deployed Iraq, he suffered a fall and injury to left knee. The knee was unstable, had multiple orthopedic examinations and in 2006 after MRI in 2006 a "complete PCL tear" was diagnosed and he later underwent reconstruction of the PCL. He then underwent physical therapy which helped the knee; the knee improved and he was redeployed with P2 profile, with no running but could continue his military MOS as truck driver. His disability was reduced to noncompensable while he was deployed. Currently, he was no longer on active duty. Although the Veteran reported that the surgery was beneficial, he said that he continued to have left knee pain perhaps related to the hardware used in reconstruction. The Veteran also reported that he had flare-ups during which he experienced increased soreness, weakness, stiffness, and popping. Range of motion testing revealed left knee flexion to 135 degrees with no objective evidence of painful motion and full extension at zero degrees, also without objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions and his motion remained the same. The Veteran did not have additional limitation in range of motion of the knee. The Veteran had tenderness or pain to palpation for joint line or soft tissues of the left knee, but muscle strength was full. All stability testing was normal and there was no evidence or history of recurrent patellar subluxation/dislocation. The examiner indicated that the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. The examiner noted that the Veteran had surgical scars, but the scarring was not painful and/or unstable and the total area of all related scars was not greater than 39 square cm (6 square inches). The Veteran did not have other pertinent physical findings, complications, conditions, signs and/or symptoms related to his left knee disability. The Veteran reported that he occasionally used a knee brace. The examiner indicated that imaging studies of the knee did not reveal degenerative or traumatic arthritis. The joint spaces and the articular surfaces appeared normal. There was no osteophyte formation. There was no fracture or dislocation or other acute osseous abnormality. The articular surfaces appeared normal. There was no appreciable joint effusion. The patella and the patellofemoral joint space appeared normal. There was a single bone screw which has been inserted from the posterior aspect of the proximal tibia. The examiner indicated that the Veteran's left knee disability did not impact his work and functioning. Arthritis due to trauma, confirmed by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71(a), Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis, when 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. Degenerative joint disease was noted by one examiner, but regardless of the existence of that diagnosis, not shown on last examination, limitation of motion will be considered. Diagnostic Code 5260 provides for a non-compensable evaluation where flexion is limited to 60 degrees; a 10 percent evaluation where flexion is limited to 45 degrees; a 20 percent evaluation where flexion is limited to 30 degrees; and 30 percent evaluation where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a non-compensable rating is warranted where extension is limited to 5 degrees; a 10 percent evaluation requires extension limited to 10 degrees; a 20 percent evaluation requires extension limited to 15 degrees; a 30 percent evaluation requires extension limited to 20 degrees; a 40 percent evaluation requires extension limited to 30 degrees; and a 50 percent evaluation requires extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion in a knee joint is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A separate rating for limitation of extension and for limitation of flexion may be assigned. VAOPGCPREC 9-2004. In this case, limitation of motion has been demonstrated on flexion only. However, it has been repeatedly noted that the Veteran does not have painful motion. Thus, while it is the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, the Veteran does not have painful motion of the left knee joint. Thus, a separate rating is not warranted for either impairment of flexion or extension given the lack of findings which establish a compensable rating. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In a precedent opinion, VA's General Counsel concluded that a veteran who has arthritis and instability in his knee may receive separate ratings under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. GC has held that if a musculoskeletal disability is rated under a specific diagnostic code that does not involve limitation of motion and another diagnostic code based on limitation of motion may be applicable, the latter diagnostic code must be considered in light of 38 C.F.R. §§ 4.40, 4.45, and 4.59 VAOPGCPREC 9-98 (Aug. 14, 1998). The Board notes that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not specify that a separate rating may only be assigned when there is arthritis and limitation of motion and/or painful motion. Therefore, consideration must be given to whether separate ratings are warranted to reflect disability manifested by instability and subluxation as well as disability manifested by limitation of motion and/or painful motion or limitation of motion and/or painful motion on its own. In this case, as noted, there is no separate rating based on limitation of motion. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5257. On one 2008 evaluation, some laxity of the ACL was noted. He also has reported on occasion instability. However, all other testing revealed that he does not have lateral instability or subluxation. The Board is mindful of this one report of some laxity and the Veteran's statements and accepts that he occasionally has instability, but moderate instability has not been shown as nearly every medical finding in that regard was normal. The Veteran has demonstrated, however, consistent reports of pain the area where the surgery occurred, and it has been indicated that it is related to the surgical screw not the scarring. There is no diagnostic code with regard to this type disability of the left knee. The Board notes that where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. The Board finds that the Veteran's consistent reports of pain and the indications of some problems with his surgical hardware do warrant the assigned 10 percent rating, by analogy under the given code, as there is no specific code in the rating schedule. However, since the Veteran's functional impairment is mild, no more than the 10 percent rating is warranted. Although DeLuca is for application with a rating based on limitation of motion, by point of reference, he also does not have weakened movement, excess fatigability, pain on movement, swelling, deformity, atrophy, loss of strength, loss of speed, loss of coordination, loss of endurance, instability, abnormal gait, abnormal weight bearing, neurological impairment, or other functional impairment. Overall, his impairment is no more than mild. Thus, a higher rating is not warranted. The Board notes there are other pertinent diagnostic criteria for rating knee disabilities. However, the objective evidence of record does not contain findings of any of the following: ankylosis of the knee (rated under Diagnostic Code 5256); dislocation of semilunar cartilage (rated under Diagnostic Code 5258); removal of semilunar cartilage (rated under Diagnostic Code 5259); nonunion or malunion of the tibia and fibula (rated under Diagnostic Code 5262); or genu recurvatum (rated under Diagnostic Code 5263). 38 C.F.R. § 4.71a. As such, ratings under these Diagnostic Codes are not applicable. The rating schedule also provides ratings under several Diagnostic Codes for scarring of the skin; however, the Veteran's scarring is asymptomatic and not of sufficient size such as to warrant a separate compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. This was most recently demonstrated at the 2012 VA examination. The Board points out that the tenderness of the left knee, while in the general area of the scarring, was determined to be related to the surgical hardware and has been compensated as such as discussed. Any further compensation based on the same pain symptoms would be pyramiding and therefore not permitted. See 38 C.F.R. § 4.14. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against an initial rating in excess of 10 percent. At this juncture, the Board notes that the 10 percent rating is for application during the periods when the veteran was not on active duty. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's left knee disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran was not hospitalized during the appeal period and has maintained employment. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for status post PCL surgery of the left knee is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs