Citation Nr: 1339889 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-32 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased evaluation for degenerative joint disease (DJD) of the right knee in excess of 10 percent prior to December 3, 2012 (to exclude a period of a temporary 100 percent disability rating due to surgery). 2. Entitlement to an increased evaluation for degenerative joint disease (DJD) of the right knee in excess of 20 percent after December 3, 2012. 3. Entitlement to an increased evaluation for degenerative joint disease (DJD) of the left knee in excess of 10 percent prior to December 3, 2012. 4. Entitlement to an increased evaluation for degenerative joint disease (DJD) of the left knee in excess of 40 percent after December 3, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2002 to June 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran effectively withdrew his request for a Travel Board hearing in September 2010. The Veteran's representative on the VA Form 646 dated January 2013 argues that the correct effective date of the Veteran's increased evaluation for his knees should be March 2009, the date of the Veteran's claim for increase. He requested that the Board consider an earlier effective date within his claim for increase. However, the Board notes that the Veteran's arguments are inherently addressed in the present claims for increase as covered by the period that is currently on appeal (one year prior to March 2009, date of claim, to present). See Francisco v. Brown, 7 Vet. App. 55 (1994) (where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.") Thus, the Veteran's arguments regarding an earlier effective date for his current disability ratings have already been contemplated herein. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues are characterized as indicated on the title page, and the Board notes that we do not need to consider whether a rating higher than 100 percent is warranted for the temporary total rating as per 38 C.F.R. § 4.30. A review of Virtual VA reveals some pertinent VA treatment records, but mostly reveals evidence duplicative of the paper file. A review of the Veterans Benefits Management System (VBMS) reveals no pertinent documents. FINDINGS OF FACT 1. Prior to December 3, 2012, right knee DJD did not more nearly approximate the functional equivalent of 30 degrees of limited flexion. Right knee flexion was no worse than 107 degrees, right knee extension was no worse than 0 degrees, and there were no objective findings of instability or subluxation. 2. Prior to December 3, 2012 right knee DJD was manifest by pain, joint effusion, and "catching" at approximately 50 degrees. 3. Prior to December 3, 2012, right knee DJD more nearly approximated dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. 4. On or after December 3, 2012, right knee DJD did not more nearly approximate the functional equivalent of 20 degrees of limited extension. Right knee extension was no worse than 15 degrees, right knee flexion was no worse than painful motion beginning at 120 degrees, and there were no objective findings of instability or subluxation. 5. Prior to April 13, 2011, left knee DJD did not more nearly approximate the functional equivalent of extension limited to 15 degrees. Left knee extension was no worse than 0 degrees, and left knee flexion was no worse than 104 degrees, and there were no objective findings of instability or subluxation. 6. After April 13, 2011, left knee DJD did not more nearly approximate the functional equivalent of extension limited to 45 degrees. Left knee extension was no worse than 30 degrees, and left knee flexion was no worse than 100 degrees with painful motion, and there were no objective findings of instability or subluxation. CONCLUSIONS OF LAW 1. Right knee DJD is no more than 20 percent disabling prior to December 3, 2012 (excluding the period of temporary 100 percent rating for surgery). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5258 (2013). 2. Right knee DJD is no more than 20 percent disabling on or after December 3, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5261 (2013). 3. Left knee DJD is no more than 10 percent disabling prior to April 13, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5261 (2013). 4. Left knee DJD is no more than 40 percent disabling on or after April 13, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.27, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010-5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., 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, 1280-81 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). A March 2009 letter that provided the required notice was sent to the Veteran prior to adjudication of his claims in September 2009. Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. Furthermore, VA provided the Veteran with medical examinations in April 2010 and December 2012. The examinations are adequate for rating purposes because each contains a history obtained from the Veteran and a thorough orthopedic examination relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed infra, there are two stages of rating applicable to both knees. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Additionally, VA's General Counsel has issued two opinions indicating that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998). In VAOPGCPREC 9-98, VA's General Counsel found that limitation of motion is a relevant consideration under DC 5259. VA's General Counsel has also found that separate ratings may be assigned under DCs 5260 and 5261, where there is compensable limitation of flexion and extension. See VAOPGCPREC 9-2004 (2004). Moreover, DCs 5256 and 5262 provide for higher ratings for ankylosis and impairment of the tibia and fibula, respectively. DC 5258 provides for a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. DC 5263 provides for a 10 percent rating for genu recurvatum. Pertinent Facts The Veteran filed his claims for an increased rating for his service-connected right knee and left knee DJD in March 2009. The Veteran underwent a joints examination by Dr. R.T.W. in May 2009 in connection with his claims, during which a diagnosis of DJD, bilateral knees, was made. The Veteran reported symptoms such as pain, stiffness, heat, instability, locking, lack of endurance, weakness, swelling, giving way, and fatigability in both knees. He uses pain pills, Advil, and ice to self-treat his condition during flare-ups of pain. However, he reported no periods of flare-ups for the joint disease. He reported an orthoscopic surgery on his left knee that was conducted in service due to an enlarged fatty sac and bone grinding in the left knee. He denied episodes of dislocation, recurrent subluxation or abnormal movement of the bones. Upon physical examination, the Veteran was found to have gait disorder due to knee involvement and severe pain. He held onto rails. He has a history of cartilage loss, bone on bone in both knees. He had orthoscopic surgery in his left knee and his right knee pops. He does not have ankylosis of the knee joints. Upon range of motion testing, the Veteran was found to have range of motion from 20 to 125 degrees for flexion and a "-20" was indicated for extension in the right knee. In the left knee, the Veteran had range of motion from 20 to 120 degrees and "-20" degrees in extension. Degree at which pain begins and degree at which pain ends for both flexion and extension bilaterally was "present." Varus/valgus of medial collateral ligaments, lateral collateral ligaments, anterior cruciate ligaments, posterior cruciate ligaments were all "normal" bilaterally. His medial meniscus and lateral meniscus (McMurray's test) bilaterally were negative. Upon initial range of motion, pain, fatigue, weakness, lack of endurance, and incoordination were found bilaterally. Objectively, painful motion, weakness, tenderness, redness, heat, and guarding of movement were found in both knees, but there was no edema, effusion, instability, or abnormal movement in either knee. Upon re-test of range of motion, the results the same as upon initial testing and zero additional loss in degrees. Pain, fatigue, weakness, lack of endurance, and incoordination were still present in both knees. Dr. R.T.W. noted functional limitations on standing and walking such as increased pain, instability, and function loss. The disabilities were said to have moderate effect on the Veteran's usual occupation and daily activities. There were no related scars identified on examination. VA requested a clarification from Dr. R.T.W. regarding his findings of extension noted as "-20" degrees bilaterally on his examination report. He provided an addendum indicating that both knees had 0 degrees extension at the time of the May 2009 examination. A December 2009 VA treatment note indicates that the Veteran felt that his knees were worsening. Upon physical assessment, the Veteran was found to have joint stiffness and pain in his knees and crepitus bilaterally. It was documented that the Veteran was sitting with his knees at 90 degrees without any swelling. January 2010 VA orthopedic consultation note indicates that the Veteran had bilateral slight swelling, no redness, change in temperature, no varus valgus instability. Patella femoral arthritis was found and he was sent for patella stabilizing braces. X-ray studies that month were taken due to complaints of knee pain. For the right knee, there was a mild narrowing of the knee joint, no fracture or dislocation, small spurs, and no joint effusion was noted. The impression was mild degenerative arthritis. For the left knee, no fracture or dislocation was seen. There was a mild narrowing of the knee joint and small spurs. No joint effusion. Mild to moderate degenerative arthritis was noted. The Veteran was afforded a VA examination in April 2010 during which he complained of pain in the bilateral knees as a constant dull ache rated 8 on the 1 to 10 scale with weakness, stiffness and swelling noted. The swelling occurred with overuse and was not present upon examination that day. Flare-up of pain was precipitated by prolonged walking, standing, climbing stairs, using ladders and attempting to kneel or squat, which increased pain to 10 and over. Treatment with ibuprofen gave minimal relief. He estimated additional limitation of motion or functional impairment during flare-ups at 100 percent lasting 3 to 4 hours. He was issued braces for his knees but was unable to wear them at work because they were too bulky. The Veteran indicated that as a supervisor at a steel company, his work involves a great deal of walking, which he approximates to be about 6 miles daily in steel-toed boots. He has to climb ladders, stairs, and at the end of the day, his pain is in the 10 plus range. With respect to activities of daily living, the Veteran indicated that any activity involving walking or standing are much more difficult due to his knee pain, and he cannot enjoy the same time of exercises as he did so previously. Upon physical examination, there was significant crepitus and pain with range of motion testing. Flexion was to 107 degrees on the right and 104 degrees for the left knee. Extension was 0 degrees bilaterally. Anterior and posterior drawer sign was negative bilaterally and the McMurray's sign was negative bilaterally. The examiner noted that in performing range of motion, the Veteran's knees caught at 50 degrees. This causes significant pain and crepitation with range of motion testing. The lateral aspect of the bilateral patellae was also tender to palpation. He was able to heel and toe walk and can perform half of a squat. There was no additional limitation of motion noted with 3 repetitions. There was increased pain at the end point of range of motion testing that prevented further movement in flexion bilaterally. Gait was antalgic. In August 2010 (CAPRI), the Veteran received bilateral knee synvisc injections for his pain as he reported an increase in pain. A March 2011 private medial report shows that the Veteran was considering a diagnostic scope for his right knee. Upon knee examination, there was crepitus of both knees with the right worse than left primarily in the patellofemoral joint and some medial and lateral joint line tenderness. A March 2011 (CAPRI) VA follow-up report for bilateral knee pain shows MRI indications of degenerative intersubstance type changes in the medial meniscus; small joint effusion; early degenerative arthritis involving the patella. The anterior and posterior crucial ligament appeared intact. Assessment was chondromalacia patella due to limited range of motion of knees. In a statement dated April 2011, the Veteran stated that his range of motion is decreasing while his pain in increasing in his knees. His knee disabilities are interfering with his duties at his job and personal life. He indicated that based on his level of pain and decline of motion and surgery, he felt that a 20 percent disability rating per knee would be "fair and sufficient." Private records show that on July 14, 2011, the Veteran underwent a right knee scope with partial medial meniscectomy for his right knee medial meniscal tear and DJD. A July 2011 letter from his private physician indicates that the Veteran was to be on modified duty at work for about 4 weeks, and needs to be restricted to desk work only. In June 2012, VA received a medical opinion for the Veteran post right knee meniscectomy/chondroplasty to ascertain whether it is as least as likely as not that the right knee surgery was due to the service-connected DJD in that knee. The examiner provided a positive opinion reasoning that his right knee DJD weakened the tissues of the right knee predisposing him to injury. By way of an August 2012 RO rating decision, the Veteran received a temporary disability rating of 100 percent for his right knee DJD from July 14, 2011 to August 30, 2011 as per 38 C.F.R. § 4.30. In December 2012, the Veteran was afforded a VA examination during which the Veteran reported flare-ups of pain with standing, walking, or climbing for a couple of hours at work. Range of motion studies revealed right knee flexion to 130 degrees with objective evidence of painful motion beginning at 120 degrees. Right knee extension was to 15 degrees with painful motion beginning at 15 degrees. Left knee flexion was to 115 degrees with painful motion beginning at 100 degrees. Left knee extension was to 30 degrees with painful motion beginning at 30 degrees. He was able to perform repetitive-use testing with three repetitions. Post-test, the Veteran's right knee flexion was to 130 and extension to 15 degrees. Left knee post-test range of motion revealed flexion to 115 degrees and extension to 30 degrees. Thus, the Veteran did not exhibit additional limitation of motion following repetitive-use testing. He was indicated to have function loss/impairment characterized as less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, all bilaterally. He also had tenderness or pain to palpation for joint line or soft tissues in both knees. Muscle strength tests bilaterally were 4/5 (active movement against some resistance). Upon joint stability tests, the Veteran tested normal bilaterally for the Lachman, posterior drawer, and valgus/varus tests. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran had no tibial or fibular impairment. It was noted that the Veteran had a previous meniscus (semilunar cartilage) condition. He had a meniscal tear in both knees, with respect to symptoms associated with the condition, he had frequent episodes of joint "locking" in the left knee and frequent episodes of join pain in both knees. It was then noted that the Veteran underwent a meniscectomy in both knees (2006 in service for left; 2011 for right). The Veteran was noted to not have any residual signs and/or symptoms due to a meniscectomy. It was indicated that the Veteran had both surgeries completed per arthroscopy but that he did not have any residual signs and/or symptoms due to arthroscopic or other knee surgery. The VA examiner indicated that he had scars that were painful and/or unstable, but it was later clarified and corrected in January 2013 that the VA examination did not find any complaints of scars during the examination and that it was a typing mistake and should have been a "no" for painful/unstable scars. This is consistent with the findings of record as the Veteran never complained of painful scars. The Veteran avers that his bilateral knee disabilities are more severe than currently evaluated both before and after December 2012. He states that his disabilities are interfering with work, everyday normal activities, and hobbies. Right Knee DJD DCs 5260 and 5261 are applicable to limitation of flexion and extension of the knee and leg. Under DC 5260, limitation of flexion of the leg to 60 degrees warrants a noncompensable rating. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. Under DC 5261, limitation of extension of the leg to 5 degrees warrants a noncompensable rating. A 10 percent rating requires extension limited to 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. Standard knee range of motion is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71a, Plate II. Right knee DJD is currently rated under DC 5010-5261 (arthritis with limitation of extension) as 20 percent disabling from December 3, 2012. By way of history, an August 2012 RO rating decision assigned a temporary total evaluation due to right knee surgery for the period from July 14, 2011 to August 30, 2011 (DC 5010-5260). Prior to December 3, 2012, the RO assigned a 10 percent evaluation for the Veteran's right knee DJD (excluding the period of a temporary100 percent rating). The 10 percent evaluation for right knee DJD contemplated DeLuca factors and painful motion under DC 5010-5260 (limitation of flexion). When limitation of motion is noncompensable under the appropriate diagnostic codes, a 10 percent rating is warranted for objectively confirmed limitation of motion. See 38 C.F.R. § 4.59 (recognizing painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). In order to warrant the next higher evaluation of 20 percent, the Veteran would need to show the functional equivalent of 30 degrees of limited flexion, which was not shown on the record during this period in question as flexion was at worst to 107 degrees. The current 10 percent assignment already contemplates periarticular pathology productive of painful motion. In order to warrant a higher evaluation there must be the functional equivalent of limitation of flexion to 20 degrees in the right knee, which is not shown prior to December 3, 2012. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.7. A separate evaluation may be assigned for compensable limitation of extension for the period prior to December 3, 2012. See VAOPGCPREC 9-2004. Under DC 5261 (limitation of extension), in order to receive a separate compensable evaluation, the Veteran must demonstrate the functional equivalent of extension limited to 10 degrees. For the period prior to December 3, 2012, the Veteran has not demonstrated degrees of extension in his right knee that is worse than 0 degrees. Thus, a separate compensable evaluation under DC 5261 is not warranted. Regardless of the RO's rating under limitation of flexion, the Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. Additionally, the Board must consider whether the disorder should have been rated under a different diagnostic code. Based on the reasons set forth below, for the period prior to December 3, 2013, the Board has reclassified the right knee DJD to include meniscus impairment and will assign a 20 percent rating warranted as of the date of the claim under DC 5258. The Board will also continue the 20 percent evaluation that was assigned effective December 3, 2012, based upon objective findings confirming limitation of extension to 15 degrees. As will be explained infra, separate evaluations may be assigned for compensable limitation of extension, instability or subluxation. The Veteran underwent a meniscectomy/arthroscopy of his right knee in February 2011. Prior to the surgery, there were consistent complaints of pain. At the April 2010 examination, it was noted that the Veteran's knees were "catching" at 50 degrees. March 2011 VA records also showed MRI findings of medial meniscus changes, to include small joint effusion. The Board has considered the provisions of DC 5258 and DC 5259 in addressing cartilage disabilities. DC 5258 is different from DC 5259 as the semilunar cartilage is dislocated in 5258 (and manifest by frequent episodes of locking, pain and effusion) and surgically absent in 5259. The Board has considered whether a separate rating is warranted for the right knee under DC 5258 for the period prior to December 3, 2012. In this case, prior to December 3, 2012, there was evidence of meniscal damage to the right knee, to include evidence of the knee "catching" at 50 degrees, evidence of joint effusion, pain, and limitation of motion. These are the precise findings contemplated by DC 5258 and a 20 percent evaluation was warranted as of the date of the claim. Because the 20 percent evaluation under DC 5258 contemplates limited motion (catching) and pain, separate evaluations may not be assigned for limitation of extension or flexion. Pursuant to Esteban, a veteran is entitled to separate ratings for each residual arising from a single disability only if none of the symptomatology for one condition is duplicative or overlapping with symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259 (1994). However, if the impairment of either flexion or extension is greater than 20 percent such evaluations may be assigned in the alternative. That is not the case. Thus, the Board finds that given the symptomatology demonstrated by the record, for the period prior to December 2, 2012, a uniform 20 percent evaluation under DC 5258, which is the highest rating available under this DC, is the most appropriate and warranted. Additionally, a separate evaluation may be assigned for instability or subluxation. See infra. The 20 percent evaluation effective December 3, 2012 was based upon objective findings at the December 2012 examination revealing limitation of extension to 15 degrees in the right knee under DC 5010-5261. The Board notes that this rating was appropriate and the evidence of record does not warrant an evaluation higher than 20 percent on or after December 3, 2012. On or after December 3, 2012, the Board finds that the evidence of record shows that the Veteran's right knee DJD did not more nearly approximate the next higher rating of 30 percent for limitation of extension under DC 5010-5261which would require the functional equivalent of limitation of extension to 20 degrees. On or after December 2012, the Board notes that at worse, on objective findings, limitation of extension was to 15 degrees. The current 20 percent assignment already contemplates periarticular pathology productive of painful motion. In order to warrant a higher evaluation there must be the functional equivalent of limitation of extension to 20 degrees in the right knee, which is not shown on or after December 3, 2012. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.7. As previously mentioned, a separate evaluation may be assigned for compensable limitation of flexion for the period on or after December 3, 2012. See VAOPGCPREC 9-2004. Under DC 5260 (limitation of flexion), in order to receive a separate compensable evaluation, the Veteran must demonstrate the functional equivalent of flexion limited to 45 degrees. For the period on or after December 3, 2012, the Veteran has not demonstrated degrees of flexion in his right knee that is worse than 130 degrees (with painful motion beginning at 120 degrees). Thus, a separate compensable evaluation under DC 5260 is not warranted. The Veteran has consistently described pain upon movement and the record shows consistent reports of pain at varying levels. However, the fact that a veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant the a higher rating under the diagnostic codes providing ratings for limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted. In that regard, the evidence does not reflect that pain or any of the other DeLuca factors resulted in limitation of motion that more nearly approximated the next higher rating of 30 percent (extension limited to 20 degrees) for the period after December 3, 2012 warranting a higher rating under DC 5261. In the examinations of record, the Veteran objectively demonstrated that he was able to perform repetitive-use testing and showed no additional limitation of motion following such testing. Any additional functional loss due to pain and weakness in the right knee joint is already contemplated in the currently assigned 20 percent rating after December 3, 2012. There has been no objective evidence of limitation of motion shown on the record after the December 2012 VA examination to support the Veteran's lay contentions of his right knee DJD worsening. The Board has considered whether a separating rating is warranted for instability or subluxation under DC 5257, Recurrent Subluxation or Lateral Instability, for the entire period of the appeal as consideration of DC5257 under these facts would not constitute impermissible pyramiding. For the entire period of the appeal, there are no objective findings of instability, other than unconfirmed reports of locking and giving way. The Board considered the Veteran's statements and testimony as to instability in both of his knees in conjunction with the objective medical findings of record. A 10 percent rating requires a finding of slight recurrent subluxation or lateral instability. A 20 percent rating requires a finding of moderate recurrent subluxation or lateral instability. None of these were shown upon objective examinations of record. In fact, the examinations of record in May 2009, April 2010, and December 2012 indicate that the examiners considered the Veteran's reports of instability, but found none to exist after conducting the appropriate tests for stability (findings normal). Although the Board finds that the Veteran's assertions as to his knees feeling unstable are competent statements, the Board is persuaded by the results of various joint stability tests, to include the Lachman test and posterior drawer test. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, DeLuca factors do not apply because DC 5257 does not pertain to limitation of motion. Johnson v. Brown, 7 Vet. App. 95 (1994). On this record, results of such joint stability tests were normal and did not show any objective findings of instability in the right or left knee. In sum, the medical evidence, as prepared by skilled examiners, is more probative than the lay evidence. Thus a separate rating under DC 5257 is not warranted. Consideration of a separate rating under DCs 5259 has been given for the period on or after December 3, 2012, where the semilunar cartilage has been removed since the surgery in the right knee. DC 5259 and DC 5261 are premised, in part, on pain and to grant a separate rating under DC 5259 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (indicating that the evaluation of the same manifestation under different diagnoses is to be avoided). The symptomatology contemplated by the rating under DC 5010-5261 effective December 3, 2012 deals with limitation of motion, to include complaints of weakness, pain, fatigability, which are also attributable to the removal of the cartilage from the knee. Furthermore, at the December 2012 examination the Veteran was noted to have no residuals symptoms for meniscectomy/arthroscopy of the right or left knees. Thus, the record shows that the Veteran's complaints of pain and weakness in his right knee are already contemplated in his current rating under DC 5010-5261. The Veteran has not submitted any evidence thereafter indicating symptomatology attributed to his cartilage removal. Thus, a separate evaluation under DC 5259 is not warranted on or after December 3, 2012. The Board notes that as the evidence does not show anklyosis of the left knee (DC 5256), impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263) at any point during the appeal period, a separation evaluation under these codes is not warranted. Lastly, there is no basis for a separate rating for any scars for either knee, as they were not painful, unstable, or greater than 39 square cm. See 38 C.F.R. § 4.118 (prior to and after August 30, 2002, October 23, 2008, and January 20, 2012). Although the December 2012 examination report indicates that there is evidence of painful or unstable scars as the VA examiner checked "yes" in response to that question, it was later clarified that it was a typographical error and the response should have read "no." Thus, the Board finds that for the period on or after December 3, 2012, an evaluation in excess of 20 percent for right knee DJD is not warranted. Left Knee DJD By way of history, a rating decision in February 2007 granted service connection for a left knee disability with a 10 percent evaluation under DC 5010-5261, arthritis with limitation of extension. The January 2013 rating decision increased the evaluation to 40 percent based on findings of limitation of extension to 30 degrees at the VA examination in December 2012. After a careful review of the record under the laws and regulations set forth above, the Board concludes that the Veteran's left knee DJD more nearly approximates the 40 percent disability rating since April 13, 2011, which is the date the RO received a written statement from the Veteran indicating that his range of motion was decreasing as pain was increasing. See supra, pertinent facts; see Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the Board has restaged the ratings pertaining to the left knee. The currently assigned 40 percent rating under 5010-5261 for the left knee DJD was based upon objective findings of limitation of extension at the VA examination conducted in December 2012 where it was demonstrated upon testing that the Veteran's limitation of extension was limited to 30 degrees. The last prior VA examination report containing objective findings of limitation of motion (flexion and extension) was in April 2010 where the Veteran complained of flare-ups of pain and additional limitation of motion during those instances. In the left knee, flexion was to 104 degrees and extension was to 0 degrees. There was significant crepitus and pain with range of motion testing, but no additional limitation of motion was shown upon repetitive-use testing. Based on these findings (no compensable limitation of motion), the Veteran had not objectively demonstrated a disability picture worse than his 10 percent rating under 5010-5261. The record shows that the Veteran continued to complain of pain in his knees and he received injections to relieve the pain in August 2010. It is the belief of the Board that the Veteran's disability does not magically worsen on the day of his VA examination measuring objective ranges of motion. Thus, the Board believes that the Veteran's disability picture was worse than is contemplated by his 10 percent rating prior to the December 2012 examination. In reviewing the evidence of record, the Board notes that proper range of motion studies, to include consideration of DeLuca factors, were last undertaken at the April 2010 examination which showed no objective signs of worsening for flexion and extension. The Board also notes the gap between April 2010 and December 2012 examinations where objective range of motion tests were not performed although the Veteran has continuously sought treatment for and complained of increasing knee pain. In a statement received by VA on April 13, 2011, the Veteran averred that he has decreased range of motion with increased pain. Range of motion studies were not documented until the December 2012 examination. As such, the Board finds that the Veteran's assertions of decreased range of motion and increased pain in his April 2011 statement to be competent and credible evidence demonstrating a worsening with his range of motion prior to it being demonstrated at the December 2012 examination. It just so happens that range of motion studies were not confirmed until December 2012 by way of a VA examination administered on that day. It according the Veteran the benefit of the doubt, the Board finds that the Veteran's left knee disability picture more nearly approximated a 40 percent rating (based on extension) prior to the December 2012 VA examination where he demonstrated limitation of extension to 30 degrees. Thus, the Board will allow an increased rating of 40 percent to begin as of April 13, 2011, based on the lay evidence of worsening. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to April 13, 2011, the Board notes that the record indicates treatment for increased pain in his bilateral knee DJD, and there are objective range of motion studies confirming that the Veteran's disability picture more nearly approximated the current 10 percent rating for that period which would require the functional equivalent of limitation of extension to 10 degrees. The Board notes that the initial assigning of that 10 percent was based upon limitation of extension shown at 10 degrees at a VA examination conducted prior to the period on appeal. During the period of the appeal prior to April 13, 2011, the Board notes that at worse, on objective findings, limitation of extension was to 0. The current 10 percent assignment prior to April 13, 2011 already contemplates periarticular pathology productive of painful motion. In order to warrant a higher evaluation there must be the functional equivalent of limitation of extension to 15 degrees, which is not shown on this record for the period prior to April 13, 2011 by either the lay or medical evidence. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.7. Under DC 5260 (limitation of flexion), in order to receive a separate compensable evaluation, the Veteran must demonstrate flexion limited to 45 degrees. The Veteran has not demonstrated on this record, at any point, degrees of flexion in his left knee that is worse than 104 degrees during the entire period on appeal. Thus, a separate compensable evaluation under DC 5260 is not warranted either before or after April 13, 2011. With respect to the 40 percent evaluation under DC 5261 (limitation of extension) for the period on or after April 13, 2011, the Veteran has not demonstrated on this record, at any point, degrees in extension in his left knee that meets the 50 percent criteria (45 degrees). At the worst, the Veteran has demonstrated 30 degrees in extension of the left knee at the December 2012 examination. The current 40 percent evaluation already contemplates periarticular pathology productive of painful motion. In order to warrant a higher evaluation there must be the functional equivalent of limitation of extension to 45 degrees, which is not shown on this record by either the lay or medical evidence. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.7. The Veteran has consistently described pain upon movement and the record shows consistent reports of pain at varying levels. However, the fact that a veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant the a higher rating under the diagnostic codes providing ratings for limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted. In that regard, the evidence does not reflect that pain or any of the other DeLuca factors resulted in limitation of motion that more nearly approximated the next higher rating of 20 percent (extension limited to 15 degrees) for the period prior to April 2011, or a next higher rating of 50 percent (extension limited to 45 degrees) for the period thereafter, warranting a higher rating under DC 5261 for either of these stages. In examinations in May 2009, April 2010, and December 2012, the Veteran demonstrated that he was able to perform repetitive-use testing and showed no additional limitation of motion following such testing. Any additional functional loss due to pain and weakness in the left knee joint is contemplated in the currently assigned ratings. Separate evaluations may also be assigned for subluxation or instability, and in some cases, for removal or dislocation of semilunar cartilage. The Board has carefully considered all of the remaining applicable Diagnostic Codes with respect to the knee joint. At this juncture, the Board notes that as the evidence does not show anklyosis of the left knee (DC 5256), impairment of the tibia or fibula (DC 5262), or genu recurvatum (DC 5263), a separation evaluation under these codes is not warranted. The Board notes that the Veteran underwent a meniscectomy/arthroscopy of his left knee in service. Therefore, the Board has also considered DC 5259 for removal of semilunar cartilage, symptomatic, as the semilunar cartilage has been surgically absent for the entire period of the appeal. As previously mentioned DC 5258 pertains to dislocation of the semilunar cartilage, which does not apply to the left knee. Regardless, the Veteran cannot be assigned a separate rating under DC 5259 for the period in question as DC 5259 and DC 5261 are premised, in part, on pain. To do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (indicating that the evaluation of the same manifestation under different diagnoses is to be avoided). Furthermore, the December 2012 examination report addresses this very issue. The Veteran was noted to have had his meniscectomy in service and no residuals symptoms for the meniscectomy/arthroscopy of the left knee was found. Thus, the record shows that the Veteran's complaints of pain and weakness in his left knee is already contemplated in his current rating under DC 5010-5261. Thus, a separate evaluation under DC 5259 is not warranted at any point in the appeal period. As previously explained, a separate rating under DC 5257 and a separate rating for painful/unstable scars have been considered and deemed inapplicable to the left knee DJD as covered earlier in the decision herein. See supra, reasons and bases, right knee DJD. Extraschedular Considerations Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected bilateral knee DJD, as previously discussed, but the medical evidence reflects that those manifestations are not present in this case for the reasons already set forth above. Additionally, the Veteran's symptoms are contemplated by the diagnostic criteria assigned to both right and left knee DJD, which consider symptomatic meniscus problems, limitation of range of motion, and additional functional loss due to pain. The Veteran has not provided evidence of any symptoms that are not expressly contemplated by the rating criteria under the applicable diagnostic codes. In any event, the Veteran did not claim, and the evidence does not reflect, that the right and left knee disabilities have caused marked interference with employment, frequent hospitalization, or that the symptoms of these disabilities have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for a right or left knee disability is not warranted. 38 C.F.R. § 3.321(b)(1). In sum, the Board finds that the evidence of record warrants a uniform 20 percent evaluation, no higher, for the period of appeal prior to December 2, 2012 for right knee DJD under DC 5258 (to exclude the 100 percent temporary rating); and a 20 percent evaluation under DC 5010-5261 for the period on or after December 2, 2012 thereafter. For left knee DJD, an evaluation of 10 percent, no higher, is warranted for the period of appeal prior to April 13, 2011 and a 40 percent evaluation thereafter under DC 5010-5261. The preponderance of the evidence is against assignment of higher ratings other than what is specified herein. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A disability evaluation of 20 percent, but no higher, for right knee DJD for the period of appeal prior to December 3, 2012 (excluding the 100 percent rating period for surgery) is granted under DC 5258 subject to controlling regulations governing the payment of monetary awards. A disability evaluation in excess of 20 percent for right knee DJD, for the period of appeal on or after December 3, 2012 is denied. A disability evaluation in excess of 10 percent prior to April 13, 2011 for left knee DJD is denied. A disability evaluation of 40 percent, but no higher, for the period on or after April 13, 2011 for left knee DJD is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs