Citation Nr: 1338494 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-35 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for left knee chondromalacia patella, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for right knee chondromalacia patella, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefits sought on appeal. On his October 2007 Appeals Hearing Option form, the Veteran indicated that he desired a central office hearing in Washington, D.C. However, in August 2009, the Veteran withdrew his request for a hearing. In January 2009, the Veteran testified at the local RO before a Decision Review Officer (DRO). A copy of that transcript has been associated with the claims file. In September 2011, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. Following the most recent AMC readjudication of this appeal in the March 2012 Supplemental Statement of the Case (SSOC), additional lay evidence was added to the claims file. However, the Veteran's representative waived the Veteran's right to have the Agency of Original Jurisdiction initially consider this evidence in a statement dated in October 2013. 38 C.F.R. §§ 20.800, 20.1304 (2013). The Veteran's paperless claims files were also reviewed and considered in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left knee chondromalacia patella has been manifested by forward flexion limited, at worst, to 90 degrees, even with consideration of his pain. 2. Throughout the appeal, the Veteran's left knee chondromalacia patella has been additionally manifested by slight lateral instability. 3. Throughout the appeal, the Veteran's right knee chondromalacia patella has been manifested by normal extension and forward flexion limited, at worst, to 100 degrees, even with consideration of his pain, but has not been manifested by occasional incapacitating exacerbations, instability, or subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the left knee chondromalacia patella are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5260-5014 (2013). 2. The criteria for a separate 10 percent initial rating, but no higher, for lateral instability of the left knee chondromalacia patella are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257 (2013). 3. The criteria for a rating in excess of 10 percent for the right knee chondromalacia patella are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5260-5014 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the Veteran's increased rating claims, a letter dated in March 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that: 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability; 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment; and, 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by the May 2008 notice letter to the Veteran regarding his increased rating claims. Although this letter was not sent prior to the initial adjudication of the Veteran's claims, this was not prejudicial to him, since the claims were readjudicated in the October 2009 and March 2012 SSOCs. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs, Social Security Administration (SSA) disability benefits records, and post-service VA treatment records have been obtained. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his service-connected bilateral knee disabilities. 38 C.F.R. § 4.2 (2013). The Board also finds no credible lay or medical evidence demonstrating or alleging an increased severity of the disabilities since the most recent VA joints examination in October 2011. Thus, there is no duty to provide further medical examination on the claims on appeal. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board is also satisfied as to substantial compliance with its September 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included sending the Veteran a letter requesting his recent treatment records and providing him with the appropriate release form (VA Form 21-4142) to obtain his confidential records from any private treatment providers. The Veteran responded that he was only being treated by VA for the disabilities on appeal. His recent VA treatment records were obtained and associated with his paperless claims file. The remand also included scheduling the Veteran for another VA joints examination, which he had in October 2011. Finally, the remand directed the AMC to readjudicate the claims, which was accomplished in the March 2012 SSOC. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that a previously unappealed rating decision granted service connection for the Veteran's chondromalacia patella of the bilateral knees. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of 10 percent evaluations for his chondromalacia patella of each knee under 38 C.F.R. § 4.71a, DCs 5260-5014. He filed his increased rating claims in February 2007. The Board notes that the Veteran is also in receipt of a separate 10 percent rating for his limitation of extension of the left knee. This separate rating was granted in the May 2007 rating decision, and the Veteran did not appeal this grant. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2013). Therefore, the Board will only discuss the chondromalacia patella of the knees disability ratings (under DCs 5260-5014) in this decision. DC 5014 refers to osteomalacia. The regulations state that DC 5014 is to be rated on limitation of motion of affected parts, as arthritis, degenerative. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When there is no 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. A 20 percent rating is warranted 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) 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 disabilities listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the appropriate DCs for limitation of motion of the knee are DCs 5260 and 5261. Under DC 5260, a 10 percent rating requires flexion of the knee limited to 45 degrees. A 20 percent rating is warranted for flexion of the knee limited to 30 degrees. A 30 percent rating is warranted for flexion of the knee limited to 15 degrees. A 30 percent rating is the maximum schedular rating available under DC 5260. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating requires extension limited to at least 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. A 50 percent rating is the maximum schedular rating available under DC 5261. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2013). In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability. It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability which is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. Id. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in VA's Rating 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. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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 (2013); 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, 38-43 (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, at 592 (1991). Instead, in Mitchell, the 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 (38 C.F.R. § 4.40), 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 (38 C.F.R. § 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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 DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to disability ratings in excess of 10 percent for his service-connected chondromalacia patella of the bilateral knees. 38 C.F.R. § 4.71a, DCs 5260-5014. Specifically, regarding the limitation of motion codes, as noted above, a claimant's painful motion may add to the actual limitation of motion so as to warrant a higher disability rating under DC 5260 or DC 5261. VAOPGCPREC 9-98. However, the evidence of record does not establish that the Veteran's forward flexion of the knees is limited to 30 degrees, to warrant higher disability ratings of 20 percent, even when considering the Veteran's pain. Specifically, at the March 2007 VA joints examination, the Veteran's knees were limited to 100 degrees of forward flexion, with pain beginning at 100 degrees in both knees. At the September 2009 VA examination, the Veteran's forward flexion of the right knee was limited to 124 degrees with pain. His forward flexion of the left knee was limited to 94 degrees with pain. In a January 2010 VA Medical Center (VAMC) treatment record, the Veteran's knees displayed forward flexion limited to 100 degrees with pain. In a February 2010 VAMC treatment record, the Veteran's knees displayed forward flexion limited to 120 degrees with pain. At the October 2011 VA examination, the Veteran's forward flexion of the right knee was limited to 130 degrees with no objective evidence of painful motion. His forward flexion of the left knee was limited to 130 degrees with objective evidence of painful motion beginning at 90 degrees. The remaining VA treatment records do not provide contrary evidence to that obtained at the VA examinations. The evidence of record does not establish that the Veteran's forward flexion of the knees is limited to 30 degrees, to warrant higher disability ratings of 20 percent, even when considering the Veteran's pain. 38 C.F.R. § 4.71a, DC 5260. Regarding the assignment of separate ratings based on the Veteran's limitation of extension of the knee, as previously stated, the Veteran is already in receipt of a separate 10 percent rating for his limitation of extension of the left knee. This separate rating was granted in the May 2007 rating decision, and the Veteran did not appeal this grant. Regarding the right knee, the evidence of record does not establish that the Veteran's extension of the right knee is limited to 15 degrees, to warrant a separate rating, even when considering the Veteran's pain. Specifically, at the March 2007 VA joints examination, the Veteran's extension of the right knee was normal (0 degrees) with pain from 20 degrees to 0 degrees. At the September 2009 and October 2011 VA examinations, the Veteran's extension of the right knee was normal without any pain. The VA treatment records do not provide contrary evidence to that obtained at the VA examinations. The evidence of record does not establish that the Veteran's extension of the right knee is limited to 15 degrees, to warrant a separate rating, even when considering the Veteran's pain. 38 C.F.R. § 4.71a, DC 5261. Thus, the Veteran is not entitled to higher disability ratings based on his limitation of motion of the knees. 38 C.F.R. § 4.71a, DCs 5260, 5261. The Veteran is also not entitled to higher 20 percent ratings under DC 5003. 38 C.F.R. § 4.71a. Regarding the left knee disability, the evidence, particularly the March 2007 VA examination in which the Veteran displayed extension limited to 10 degrees, establishes that the Veteran does have a compensable disability rating under the limitation of extension code (DC 5261) for his left knee, even when considering the Veteran's pain. 38 C.F.R. § 4.71a. As stated above, the Veteran is already in receipt of this separate 10 percent rating for his left knee disability. In this regard, DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the Veteran's left knee is appropriately rated as 10 percent, based on his painful motion, under DC 5261. His range of extension, as demonstrated at the March 2007 VA examination, meets the requirements for the 10 percent rating under DC 5261. Therefore, the Veteran is best rated under the limitation of motion codes for his left knee, and DC 5003 cannot provide the basis for a higher rating. 38 C.F.R. § 4.71a. Regarding the right knee disability, the evidence described above establishes that the Veteran does not warrant a compensable disability rating under the limitation of motion codes (DCs 5260 and 5261). 38 C.F.R. § 4.71a. In instances where there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, but there is 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, a 20 percent rating is warranted. 38 C.F.R. § 4.71a. Here, however, the evidence of record does not establish that the Veteran has occasional incapacitating exacerbations from his right knee disability. These complaints were not noted in any of the VA compensation examinations or treatment records. Specifically, at his September 2009 VA examination, he denied any physician directed bed rest or incapacitating episodes. At the October 2011 VA examination, the Veteran reported that his right knee "doesn't really bother him." This evidence does not establish that the Veteran's right knee is manifested by occasional incapacitating exacerbations. Thus, the Veteran is not entitled to a higher 20 percent under DC 5003 for his right knee disability. 38 C.F.R. § 4.71a. The Veteran is also not entitled to separate disability ratings under DC 5257 for instability or subluxation of his right knee. 38 C.F.R. § 4.71a. Despite the Veteran's complaints of buckling of the knee, the objective medical evidence does not demonstrate instability or subluxation of the right knee. Specifically, at the March 2007 VA examination, the drawer test of the Veteran's right knee was negative, demonstrating a stable right knee. Subluxation was also noted at the March 2007 VA examination. Similarly, at the September 2009 and October 2011 VA examinations, following joint stability testing, the VA examiners determined that the Veteran did not have instability or subluxation of the right knee. Instability and subluxation of the right knee are also not documented in the VA treatment records. Thus, the Veteran is not entitled to a separate disability rating under DC 5257 for his service-connected right knee disability. 38 C.F.R. § 4.71a, DC 5257. Regarding the left knee, the Board finds that the Veteran is entitled to a separate initial disability rating of 10 percent for lateral instability of his left knee. Throughout his appeal, the Veteran has provided subjective complaints of instability of his left knee. Specifically, at all of his VA examinations, the Veteran reported giving way and buckling of his left knee and the use of a crutch and/or cane. The Board finds the Veteran credible to describe the instability of his left knee, as his lay statements are supported by the medical evidence of record. At the September 2009 VA examination, the VA examiner, following instability testing of the left knee, determined that the Veteran had slight lateral instability of his left knee. Thus, giving the Veteran the benefit of the doubt, the Board finds that he is entitled to a separate 10 percent initial disability rating for instability of his left knee under DC 5257. 38 C.F.R. § 4.71a. However, the evidence does not show that the Veteran is entitled to a rating higher than 10 percent under DC 5257 for his left knee instability. The evidence of record does not establish that the Veteran's left knee presents symptoms of moderate recurrent subluxation or lateral instability. Specifically, the March 2007 and October 2011 VA examiners found that the Veteran did not have instability or subluxation of his left knee. Additionally, although the September 2009 VA examiner diagnosed the Veteran with slight instability, the examiner noted that the drawer test of the left knee was negative, indicating the left knee was stable. Subluxation was also not documented at the September 2009 VA examination. The treatment records do not provide contrary evidence to that obtained at the VA examinations. In summary, the claims file does not contain objective evidence that the Veteran's left knee disability is manifested by moderate instability or subluxation to warrant a higher 20 percent rating under DC 5257. Therefore, the Veteran is entitled to a separate initial disability rating of 10 percent, but no higher, under DC 5257 for his left knee disability. 38 C.F.R. § 4.71a. The remainder of the DCs pertaining to the knee and leg do not justify higher disability ratings for either knee. Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knees. The existence of ankylosis is not supported by the Veteran's ranges of motion. DC 5258 is applicable where there is dislocated cartilage of the knee, and DC 5259 is applicable where there is removal of cartilage of the knee. These codes have not been raised by the medical evidence, as there were no structural abnormalities of the Veteran's knees noted at the VA examinations or in the VA treatment records. X-rays of the knees taken at the February 2009 VA examination and at a March 2007 VAMC treatment visit were normal. Thus, the Veteran is not entitled to separate disability ratings under DC 5258 or DC 5262. Additionally, the Veteran is already in receipt of the maximum schedular ratings of 10 percent under DC 5259 and DC 5263. Thus, these remaining DCs do not justify a disability rating in excess of 10 percent for the service-connected bilateral knee disabilities. 38 C.F.R. § 4.71a. Therefore, the Veteran is not entitled to disability ratings in excess of 10 percent for his service-connected bilateral knee chondromalacia patella. 38 C.F.R. § 4.71a, DCs 5260-5014. However, the Veteran is entitled to a separate 10 percent initial disability rating, but no higher, for his lateral instability of the left knee chondromalacia patella. 38 C.F.R. § 4.71a, DC 5257. In forming this decision, the Board has considered the Veteran's complaints of pain in the knees. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran's disability warrants higher disability ratings. 38 C.F.R. § 4.71a. Specifically, at the March 2007 VA examination, the Veteran reported flare-ups of the knees three times per week, each lasting three hours. The Veteran stated that he was able to work through the flare-ups with no functional limitation. The examiner found that the Veteran did not have any pain on ranges of motion or flare-ups of the knees, and the DeLuca criteria were not present. The examiner indicated that the knees did not have any additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use. At the September 2009 VA examination, the Veteran reported flare-ups of knee pain every day, lasting all day long and limiting his physical activity. Flare-ups had no functional limitations on his sitting. The examiner determined that the Veteran did not have any decrease in his ranges of motion of the knees with repetitive movement. The examiner found that the Veteran did not have any pain on ranges of motion or flare-ups of the knees, and the DeLuca criteria were not present. The examiner indicated that the knees did not have any additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use. At the October 2011 VA examination, the Veteran reported flare-ups of his knees. He described occasional swelling and increased pain that limited his ability to do weight-bearing activities. The examiner found that the Veteran was able to perform repetitive-use testing with three repetitions of each knee. The Veteran did not have additional limitation in ranges of motion of the knees following repetitive-use testing. The examiner determined that, following repetitive use of the right knee, the Veteran did not have any functional loss. Following repetitive use of the left knee, the Veteran had less movement than normal, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. However, given that the Veteran was able to achieve the aforementioned ranges of motion of each knee on examinations despite the presence of pain, the Board finds that additional compensation for pain is not warranted. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell, 25 Vet. App. at 32. An award of a higher rating cannot be based on speculation of the additional functional loss in terms of degrees during such flare-ups. Thus, the Board finds that the Veteran's painful limitation of motion and additional functional impairment meets the impairment contemplated by the current scheduler disability ratings throughout the entire appeal period and does not more nearly approximate functional impairment commensurate with higher disability ratings. Even when considering the Veteran's pain and functional impairment following repetitive motion, the evidence of record does not establish that he has the requisite limitation of motion of either knee to warrant a higher disability rating. Accordingly, the evidence of record does not support the assignment of higher disability ratings for the chondromalacia patella of the knees based on additional functional limitation following repetitive use or flare-ups of the joint. It also bears reiterating that the Veteran does not have sufficient limitation of flexion or extension in his right knee, even when considering his pain, to warrant even the minimum compensable rating of 10 percent under DCs 5260 or 5261. Thus, his current 10 percent rating for his service-connected right knee disability under DCs 5260-5014 is the means of compensating him for the additional impairment - including additional limitation of motion from his chronic pain in this knee. Thus, he is already receiving the appropriate amount of compensation for the pain and other DeLuca factors. The Board has also considered whether staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period have the service-connected bilateral knee disabilities more nearly met or nearly approximated the criteria for higher disability ratings. Accordingly, staged ratings are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his knee disabilities are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the service-connected chondromalacia patella of the bilateral knees at any time during the appeal period. Thus, the claims are denied. However, the claim of entitlement to a separate 10 percent initial disability rating, but no higher, for lateral instability of the left knee chondromalacia patella is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular and TDIU Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2013), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular ratings for the Veteran's service-connected bilateral knee disabilities fully address his symptoms, which include mainly pain, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. The evidence of record does not establish that his bilateral knee disabilities prevent him from being employed or have required frequent hospitalizations. At the March 2007 VA examination, the Veteran reported that he was currently employed and his knee flare-ups did not hinder his work. At the September 2009 VA examination, the Veteran reported that he was currently working, but had been put on light duty due to his knee problems. At the October 2011 VA examination, the Veteran stated that he was unable to continue his career as a security officer due to his service-connected bilateral knee disabilities and his non-service-connected back disorder. Following a physical examination of the Veteran, the VA examiner determined that the Veteran's bilateral knee disabilities would limit his ability to do a job that involved prolonged weight-bearing. However, the examiner stated that if the Veteran was allowed to rest or performed a sedentary job, then there would be no reason why the Veteran could not work. There is no evidence in the claims file suggesting that the Veteran's service-connected bilateral knee disabilities on their own prevent the Veteran from being employed. The treatment records do not provide contrary evidence to that obtained at the VA examinations, and do not demonstrate that the Veteran has been hospitalized for his service-connected bilateral knee disabilities during the course of this appeal. Accordingly, there is no evidence that the Veteran's service-connected knee disabilities cause impairment that is not contemplated by the schedular rating criteria or that render impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Referral of this case for consideration of extraschedular ratings is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At the March 2007 VA examination, the Veteran reported that he was currently employed and his knee flare-ups did not hinder his work. At the September 2009 VA examination, the Veteran reported that he was currently working, but had been put on light duty due to his knee problems. At the October 2011 VA examination, the Veteran stated that he was unable to continue his career as a security officer due to his service-connected bilateral knee disabilities and his non-service-connected back disorder. Following a physical examination of the Veteran, the VA examiner determined that the Veteran's bilateral knee disabilities would limit his ability to do a job that involved prolonged weight-bearing. However, the examiner stated that if the Veteran was allowed to rest or performed a sedentary job, then there would be no reason why the Veteran could not work. The treatment records do not provide contrary evidence to that obtained at the VA examinations. There is no evidence in the claims file to suggest that the Veteran's service-connected bilateral knee disabilities, either on their own or when combined with other service-connected disabilities, prevent the Veteran from working. Instead, the record suggests that the Veteran's non-service-connected back disorder has an effect on his employability. Therefore, the Board finds that consideration of a TDIU is not warranted. ORDER An evaluation in excess of 10 percent for the service-connected chondromalacia patella of the left knee is denied. Entitlement to a separate initial disability rating of 10 percent, but no higher, for lateral instability of the left knee is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. An evaluation in excess of 10 percent for the service-connected chondromalacia patella of the right knee is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs