Citation Nr: 1339894 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-03 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an increased rating for service-connected right knee arthritis, currently evaluated as 10 percent disabling. 2. Entitlement to an evaluation for service-connected residuals of a concussion, to include headaches (currently rated 10 percent disabling) and dizziness (currently rated as 10 percent disabling). 3. Entitlement to an increased rating for service-connected tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to January 1995 with inactive duty service as well. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that in pertinent part, denied an increase in a 10 percent rating for service-connected cerebral concussion with headaches, tinnitus and dizzy sensations, and denied an increase in a 10 percent rating for service-connected arthritis of the right knee. The Veteran and his wife testified at a Board hearing before the undersigned acting Veterans Law Judge (VLJ) at the RO in Lincoln, Nebraska in August 2008. The transcript of this hearing has been associated with the file. In a March 2009 decision and remand, in pertinent part, the Board denied an increase in a 20 percent rating for service-connected right knee instability, and remanded the issues of entitlement to an increased rating for right knee arthritis and for residuals of a concussion to the Appeals Management Center (AMC) for additional development. The Board notes that the Veteran's service-connected disability now characterized as residuals of cerebral concussion with dizzy sensations previously also included headaches and tinnitus. Then, in an October 2009 rating decision, the AMC granted separate 10 percent ratings for concussion residuals including tinnitus and headaches, effective August 15, 2006, and continued the 10 percent rating for residuals of concussion with dizzy sensations. Each of these ratings remains on appeal. The case was subsequently returned to the Board. FINDINGS OF FACT 1. During the period prior to May 23, 2009, the Veteran's right knee arthritis disability was manifested by X-ray evidence of arthritis, and was productive of either painful motion not otherwise compensable or by limitation of extension to 5 degrees; at no time was limitation of flexion to 45 degrees or limitation of extension to more than 10 degrees demonstrated, including with repetitive motion and with consideration of excess fatigability and pain. 2. During the period from May 23, 2009, the Veteran's right knee arthritis disability is manifested by arthritis and pain causing severely limited right knee flexion and extension during daily flare-ups. 3. The Veteran's service-connected tinnitus is currently evaluated as 10 percent disabling, the maximum schedular evaluation. 4. Throughout the rating period on appeal, the Veteran's concussion residuals have been characterized by headaches that are prostrating on average of once a month over the last several months, with subjective complaints of dizziness; there has been no diagnosis of multi-infarct dementia associated with brain trauma, and no showing of purely neurologic symptoms, completely prostrating and prolonged attacks, or severe economic inadaptability. CONCLUSIONS OF LAW 1. During the period prior to May 23, 2009, the criteria for an increased rating in excess of 10 percent for the right knee arthritis disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 2. During the period from May 23, 2009, the criteria for an increased 30 percent rating for right knee arthritis with limitation of flexion of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2013); VAOPGCPREC 9-2004. 3. During the period from May 23, 2009, the criteria for a separate 20 percent rating for right knee arthritis with limitation of extension of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2013); VAOPGCPREC 9-2004. 4. The criteria for an increased rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (2012). 5. The criteria for an increased 30 percent rating (and no higher) for concussion residuals including headaches and dizziness are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007); 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8100; 38 C.F.R. § 4.130, Diagnostic Code 9304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This Veteran has been notified of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The Veteran has also been advised of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During the pendency of the appeal, the VCAA notice requirements were interpreted as follows. For an increased compensation claim, the veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, 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 daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require 'daily life' evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). The notice must advise the veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, (2010) (Vazquez-Flores III). The Veteran was notified of these changes in July 2009. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). A VCAA letter was sent to the Veteran in September 2006, prior to the December 2006 rating decision. Additional notice was provided in letters dated in July 2008 and July 2009, and the claim was last readjudicated in an October 2009 supplemental statement of the case. As the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in timing or content and that the error is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC have obtained the Veteran's service treatment records and VA treatment records. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. During the course of this appeal, VA arranged for multiple VA compensation examinations in October 2006, November 2006, May 2008, May 2009 and June 2009, to determine the severity of his service-connected right knee arthritis and concussion residuals. Only if the record is inadequate or there is a suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a) (2012). Here, the most recent VA compensation examinations for these conditions were conducted in May and June 2009. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions were rendered by medical professionals following thorough examinations and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided detailed explanations for the opinions that were reached. The Veteran has not contended that these disabilities have worsened since the most recent examination, and there is no subsequent evidence of record showing worsening of these conditions. The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his right knee arthritis and concussion residuals, and another VA examination is not required. 38 C.F.R. §§ 3.327(a), 4.2. The Board further finds that there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (An appellant is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance). See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In this regard, the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal, to include providing him with VA examinations. The AOJ provided him notice on substantiating his claim in July 2009. The Veteran was afforded VA examinations in May 2009 and June 2009. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the August 2008 Board hearing. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Right Knee Initially, the Board notes that the Veteran has two separately service-connected right knee disabilities, and that only the disability rating for service-connected right knee arthritis is currently before the Board. In its prior March 2009 decision, the Board denied an increase in a 20 percent rating for service-connected right knee instability (characterized as laxity of medial collateral ligament, right knee, status post high tibial osteotomy), rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran contends that his right knee arthritis disability, characterized by the RO as right knee arthritis, status post tibial osteotomy, is more disabling than currently evaluated. 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. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id., quoting 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 determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The RO has rated the right knee arthritis disability as 10 percent disabling under Diagnostic Code 5010, pertaining to traumatic arthritis. 38 C.F.R. § 4.71a. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 10 percent disability rating based on X-ray findings will not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261, pertaining to limitation of leg extension, is also of relevance here. Under that Code section, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). As noted above, the Veteran is already in receipt of separate ratings for the right knee under Diagnostic Code 5257 and under Diagnostic Code 5010. See VAOPGCPREC 23-97. VA's General Counsel has additionally held that separate rating may also be assigned for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. The Veteran was afforded a VA examination in July 2003. He reported wearing bilateral knee braces every day and multiple prior surgeries to his right knee. He also reported pain, and the examiner found the right knee was swollen at the examination; mild to moderate effusion was noted. On examination of the right knee, he had full extension and flexion limited to 135 degrees. At the Veteran's November 2006 VA examination he was wearing bilateral knee braces which were removed for the examination. On examination, range of motion of the right knee was from 5 to 130 degrees. Repeated range of motion exercises were performed to the above mentioned limits with moderate pain, mild to moderate weakness and fatigue, but no incoordination. The examiner diagnosed musculoligamentous strain of both knees, and bilateral knee degenerative joint disease and previous high osteotomy of the right knee. An October 2006 X-ray study of the right knee showed high right tibial osteotomy with no hardware complication, moderate medial compartment degenerative joint disease, mild lateral and patellofemoral degenerative joint disease. VA treatment records from this time period also show the Veteran was attending physical therapy for chronic knee pain. A June 2007 VA treatment record reflects that range of motion of the right knee was from -5 degrees of extension to 100 degrees of flexion. A July 2007 VA treatment record shows that the Veteran reported pain in his bilateral knees. On range of motion testing of the right knee, he had full extension with flexion to 110 degrees. He was given steroid injections to help with the pain in his right knee. See also April 2007 VA treatment record. An April 2008 private treatment record reflects that the Veteran had knee pain and full range of motion of the knees. The Veteran was afforded a VA examination in May 2008. He reported limitation of motion, pain, giving out, instability, and flare ups. Reported symptoms included giving way, instability, pain, stiffness, weakness and effusion. X-rays showed mild right knee degenerative joint disease and post operative changes of the right tibia, unchanged. On right knee range of motion testing the Veteran had flexion limited to 85 degrees, with pain at 40 degrees. He had full extension, but it was noted that pain began at 50 degrees. There was no limitation of motion with repetitive range of motion due to pain, fatigue, lack of endurance, incoordination or weakness. The examiner stated that ankylosis was not shown. The clinical diagnosis was right knee degenerative joint disease and post osteotomy. At the Veteran's August 2008 Board hearing he and his wife testified that he had 4 operations on his right knee and that he wore a knee brace on a daily basis. He also testified he was in constant pain. His work routine had to be adapted so that he could sit for short periods of time instead of standing all day because of his knee symptoms. At his most recent VA compensation examination on May 23, 2009 the Veteran reported right knee pain which ranged from a 7-10/10 in severity and lasted approximately an hour to two hours every day, sometimes several times per day. This was worsened with increased standing and walking. He used bilateral medial offloading knee braces. He reported that he had been off work due to knee limitations. He reported that his range of motion was decreased during flare-ups, flexion more than extension, and that his range of motion was essentially 0 during flare-ups. He said he was able to walk approximately one block and stand for approximately ten minutes before he was debilitated. On examination, range of motion of the right knee was as follows: from a 10 degree flexion contracture to 78 degrees of further flexion. This was done repetitively and was limited by pain, weakness and fatigue. His knees were stable to varus and valgus stresses. An X-ray study showed severe gonarthrosis. The examiner stated that it was clear that the Veteran's range of motion was severely limited as a result of his arthritis and he agreed with the May 2008 VA examiner's findings more so than previous range of motion documentation from other sources. He opined that the Veteran's right knee "range of motion is further limited during flares, and I see this as being feasible that his range of motion is almost 0 during this time." Records on file show that the Veteran received a disability retirement in August 2009 due to his musculoskeletal conditions. Throughout the rating period on appeal, the RO has rated the Veteran's arthritis of the right knee as 10 percent disabling. As degenerative arthritis has been established by X-ray findings, the right knee arthritis disability is rated on the basis of limitation of motion under the appropriate diagnostic codes, i.e., Diagnostic Codes 5260 and 5261. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. After a review of all of the evidence of record, the Board finds that prior to May 23, 2009, the range of motion findings detailed above do not warrant a rating in excess of 10 percent for the right knee arthritis disability under the Diagnostic Codes pertaining to limitation of motion of the knee, as active range of motion of the right knee was not limited to a compensable degree prior to that date. Range of motion of the right knee was from 0 to 135 degrees (i.e., full extension and nearly full flexion) on VA examination in July 2003. On VA examination in November 2006, extension was nearly full at 5 degrees, and flexion was to 130 degrees. In June 2007, extension was to -5 degrees and flexion was to 100 degrees. On VA examination in May 2008, flexion was limited to 85 degrees, with pain at 40 degrees, and extension was full, with pain at 50 degrees. There was no additional limitation of motion with repetitive range of motion due to pain, fatigue, lack of endurance, incoordination or weakness. Even accepting that he had significant limitation of flexion of the right knee during that examination, with consideration of pain, this still far exceeds the flexion limitation required for even the most minimum 0 percent rating under Diagnostic Code 5260, since flexion must be limited to 60 degrees for a 0 percent rating under this Code. Similarly, the weight of the evidence during this period does not show that extension, even with consideration of pain, was limited to 15 degrees, as required for the next-higher 20 percent rating under Diagnostic Code 5261. Again, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell, supra. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see also 38 C.F.R. § 4.40. In other words, during the period prior to May 23, 2009, the disability picture for the right knee arthritis disability has not met or approximated that of a 20 percent disability rating under any applicable rating criteria. That is, under Diagnostic Code 5260, the Veteran did not demonstrate limitation of flexion of the right knee to 30 degrees or less, and under Diagnostic Code 5261 did not demonstrate limitation of extension to 15 degrees. In addition, during this period there has never been a point at which he has demonstrated limitation of flexion to 45 degrees or less at the same time as limitation of extension to 10 degrees was shown. As such, during this period, there was no point at which a compensable rating under both Diagnostic Codes 5260 and 5261 was met at the same time, and separate evaluations based on limitation of extension and flexion are not warranted during this period. See VAOPGCPREC 9-2004. Hence, a rating in excess of 10 percent is not warranted for the right knee arthritis disability during the period prior to May 23, 2009. However, from the date of a May 23, 2009 VA examination, the Board finds that an increased rating is warranted for the right knee arthritis disability, based on limitation of motion due to pain. At that examination, extension was to 10 degrees and flexion was to 78 degrees of further flexion. This was done repetitively and motion was limited by pain, weakness and fatigue. The Veteran reported that his range of motion was decreased during flare-ups, flexion more than extension, and that his range of motion was essentially 0 during flare-ups. The examiner further indicated that the Veteran's report that he had a right knee range of motion during flare-ups that was "almost 0" was feasible, and opined that the Veteran's range of motion was severely limited as a result of his arthritis. The examiner thus found that the Veteran's right knee pain caused functional loss during flare-ups. See 38 C.F.R. § 4.40; Mitchell, supra. And the Veteran has stated that he has flare-ups on a daily basis. The Board finds that the above evidence demonstrates the Veteran is entitled to separate evaluations based on limitation of extension and flexion from May 23, 2009, since the evidence reflects separately compensable ratings for limitation of right knee flexion and extension, with consideration of functional loss caused by pain. See VAOPGCPREC 9-2004. With resolution of doubt in the Veteran's favor, and considering his reports of knee pain, the Board finds that under Diagnostic Code 5260 the Veteran is entitled to an increased maximum 30 percent rating for severe limitation of flexion due to pain during daily flare-ups, based on the May 2009 VA examiner's finding that he had almost no motion during flare-ups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260. With resolution of doubt in the Veteran's favor, and considering his reports of knee pain, the Board finds that under Diagnostic Code 5261 the Veteran is also entitled to an increased 20 percent rating for limitation of extension due to pain during daily flare-ups based on the May 2009 VA examiner's finding that he had almost no motion during flare-ups. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5261. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disabilities in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the ratings discussed above. See 38 C.F.R. § 4.7. The Veteran in this case has already been assigned a disability rating of 20 percent for his right knee instability, and is now being awarded increased separate 30 and 20 percent ratings for his service-connected right knee arthritis disability based on limitation of flexion and extension, effective on May 23, 2009. However, an even higher disability rating cannot be assigned pursuant to 38 C.F.R. § 4.68 (amputation rule). See also 38 C.F.R. § 4.25 (combined ratings table). Under this regulation, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. In order to assign a higher disability rating, under § 4.68 (and Codes 5162-5164), the symptoms would have to be equivalent to those wherein the elective site of amputation was the middle or lower thirds of the thigh, or leg amputation with a defective stump and a recommendation for a thigh amputation. As the evidence does not show any pathology above the Veteran's knee due to the service-connected right knee arthritis disability, 38 C.F.R. § 4.68 precludes the assignment of a combined right knee rating in excess of 60 percent. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disabilities in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates the ratings discussed above. See 38 C.F.R. § 4.7. The Board has also considered 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. At his May 2009 VA examination the examiner noted his range of motion was limited by pain, weakness, and fatigue. The Board has also considered the potential applicability of other rating codes for the Veteran's right knee disability. However, no separate or higher evaluation is warranted under any of the other diagnostic codes related to knee disabilities. Throughout the rating period on appeal, an increased rating is not warranted under Diagnostic Code 5256, as ankylosis of the right knee was not shown. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). The Veteran is already separately evaluated for instability of the right knee. See March 2009 Board decision. Diagnostic Codes 5258 and 5259 pertain to dislocated and removal of semilunar cartilage, which is not shown. Moreover, there is no evidence the Veteran has nonunion or malunion of the tibia or fibula. Diagnostic Code 5262 is therefore inapplicable. Finally, there is no evidence that the Veteran has genu recurvatum and as such Diagnostic Code 5263 is not applicable. There are no other relevant codes for consideration as to the right knee arthritis disability at issue. In addition to the medical evidence, the Board has considered the Veteran's and his wife's statements and testimony in support of his claim. The Veteran, as a layman, is competent to report matters of which he has personal knowledge, such as pain, stiffness, and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2). However, as a layman without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative opinion on the severity of his right knee disability in relation to the applicable rating criteria. Medical examiners, including the VA compensation examiners, have measured the objective range of motion testing and evaluated x-rays in determining the overall severity of his right knee disability. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In sum, a rating in excess of 10 percent is denied for the right knee arthritis disability during the period prior to May 23, 2009. From May 23, 2009, an increased 30 percent rating is assigned for right knee arthritis with limitation of flexion of the right knee, and a separate 20 percent rating is awarded for right knee arthritis with limitation of extension of the right knee. Concussion Residuals The Veteran contends that his service-connected concussion residuals are more disabling than currently evaluated. Service treatment records show that during service, he incurred a closed head injury in a motor vehicle accident, and was in a seven-day coma. Service connection was subsequently established for concussion residuals. Historically, this disability was characterized as residuals of a cerebral concussion with post-traumatic headaches, and rated as 10 percent disabling under Diagnostic Code 9304 (dementia due to head trauma). In subsequent rating decisions, including the December 2006 rating decision on appeal, this disability was characterized as residuals of cerebral concussion with headaches, tinnitus, and dizzy sensations. Ever since service connection was established for the Veteran's residuals of a head injury/concussion, and throughout the rating period on appeal, the service-connected concussion residuals have been rated under Diagnostic Code 9304, pertaining to dementia due to head trauma. During the pendency of this appeal, in an October 2009 rating decision, the AMC granted a separate 10 percent rating for tinnitus under Diagnostic Code 6260 and a separate 10 percent rating for headaches under Diagnostic Code 8100, and continued the 10 percent rating for residuals of concussion with dizzy sensations under Diagnostic Code 9304. These separate ratings were each effective August 15, 2006, the date of his increased rating claim. As a result, these ratings have been in effect throughout the rating period on appeal. As will be discussed below, the Board finds that the evidence shows that an increased 30 percent rating is warranted for service-connected subjective concussion residuals including headaches and dizziness, rated by analogy to migraine headaches. 38 C.F.R. § 4.20. The Board has taken into consideration the potential applicability of other diagnostic codes in rating the disabilities at issue. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). Diagnostic Code 8045 is for consideration in this case. This Code formerly pertained to brain disease due to trauma, and now applies to traumatic brain injury (TBI). Under the former Diagnostic Code 8045, purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, are to be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). Dementia due to head trauma is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9304. The Veteran's claim for an increased rating for concussion residuals was received in August 2006. During the course of the appeal, the regulations for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended, effective October 23, 2008. See 73 Fed. Reg. 54,693-54,708 (Sept. 23, 2008). The Federal Register's paragraph addressing the applicability date of the new regulation specifically states: The amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date. However, a Veteran whose residuals of TBI were rated by VA under a prior version of 38 CFR 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. The effective date of any increase in disability compensation based solely on the new criteria would be no earlier than the effective date of the new criteria. The effective date of any award, or any increase in disability compensation, based solely on these new rating criteria will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations governing effective dates, 38 C.F.R. 3.400, etc. The rate of disability compensation will not be reduced based on these new rating criteria. 38 U.S.C.A. § 1155; 73 Fed. Reg. 54,693 (Sept. 23, 2008). The Veteran's current appeal for an increased rating for concussion residuals was received in August 2006, which is well before the effective date of the amendment, October 23, 2008, and he has not requested review under the revised TBI criteria. Thus, the revised rating criteria are not applicable, and only the previous rating criteria of Diagnostic Codes 8045 will apply as discussed above. Throughout the rating period on appeal, the Veteran's service-connected headaches have been rated by analogy (see 38 C.F.R. § 4.20) as 10 percent disabling under Diagnostic Code 8100, which pertains to migraines. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." On VA psychiatric examination in October 2006, the Veteran complained of depressed feelings and irritability, as well as difficulty sleeping due to pain. On examination, he was clean, neatly groomed, and casually dressed. Psychomotor activity was unremarkable, speech was spontaneous and clear, attitude was cooperative, friendly, relaxed and attentive, affect was appropriate, mood was dysphoric, attention was intact, and thought process and content were unremarkable. He was oriented to person, place and time. He had no delusions or hallucinations. He had no inappropriate behavior, obsessive or ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. He had good impulse control, and no episodes of violence. Memory was normal. He was employed on a full-time basis as a mail clerk, and had held this job for ten years. He had lost time from work due to physical problems. The Axis I diagnosis was cognitive disorder, not otherwise specified (NOS). He had no other Axis I diagnosis. He had a Global Assessment of Functioning (GAF) of 75, indicating mild and transient reactions to psychosocial stressors. The examiner stated that his mental disorder symptoms were not severe enough to interfere with occupational and social functioning. On VA brain and spinal cord examination in November 2006, the Veteran complained of headaches since his accident. On examination, there was no functional motor impairment, muscle tone was normal, there was no muscle atrophy, no dysesthesias, and no fasciculations. Gait was abnormal, but this was due to other issues and not headaches. Balance was normal, there were no findings of ataxia, incoordination or spasticity, no speech impairment, and no autonomic nervous system problems. There was no sensory, bowel, bladder, or cranial nerve impairment. There was no evidence of a cognitive or psychiatric impairment, and no evidence of loss of sense of taste or smell. The examiner indicated that the Veteran worked on a full-time basis at the postal service, and missed work one to two times per month due to headaches, but none were prostrating. The diagnosis was tension/post-concussion headaches. The effect on his work was increased absenteeism. At his August 2008 Board hearing, the Veteran testified that he had headaches and dizziness two or three times per week. He said that occasionally "Everything just kind of fades black and then comes back." He said these episodes did not last long. See hearing transcript, p.4. He said that he took pain medication for other orthopedic problems and his headaches. He testified that he had missed a lot of work due to all of his medical problems, including his headaches. His wife testified that the Veteran was sometimes incapacitated due to his headaches, and had to stay in bed. She said that she sometimes had to help him if he needed to move around during a headache. On VA neurological examination on May 23, 2009, the examiner stated that the claims file was reviewed. He summarized pertinent records, and noted that an August 2001 electroencephalogram (EEG) was normal, and a magnetic resonance imaging (MRI) scan of the brain showed no brain abnormalities. The Veteran complained of constant bilateral tinnitus, and headaches that occurred every other day. He said that most of these headaches were incapacitating and lasted for hours. His reported vertigo was a sense that the room was spinning and his vision blacked out. He said this occurred every other day and was related to his headaches. The examiner indicated that headaches came at least every other day and most attacks were prostrating. On examination, strength, muscle tone, muscle bulk and sensation were normal. A fundoscopic examination was normal, mental status was normal, cranial nerves were intact, and reflexes and cerebellar examination were normal. There was no evidence of chorea. The diagnosis was posttraumatic headaches accompanied by severe vertigo and loss of vision, and tinnitus. The effect of this disability on occupational activity was increased absenteeism, decreased concentration, difficulty following instructions, and pain. On VA neurological examination in June 2009, the Veteran reported that shortly after his in-service accident, he was in and out of awareness for several days. He currently complained of severe headaches, and said he had no loss of vision except for some blurring. He had a headache every day during some weeks, and other weeks up to two or three times per week. They lasted for several hours. During these, he had to lie down and take medication. They resolved after sleep. He reported short-term memory problems but said he did well with long-term memory. He was able to function in his job and knew the sequence of his work activities. The examiner stated that the complaint of dizziness was difficult to quantify. The Veteran reported that it came for a short time, he lost some vision, and then some "graying out" that lasted for a few seconds. He stood and then it cleared rapidly. He related that this could also be when he stood up from lying down. He complained of tinnitus. On neurological examination, cranial nerves II, III, IV and VI were intact. Cranial nerve V showed good masseter strength and sensation over the face, VII showed no asymmetry of facial movements, and VIII appeared intact. Cerebellar testing was done well. His gait was hampered due to orthopedic problems. Cognition was intact for recent events. The examiner diagnosed posttraumatic head pain, changes in cognition historically related to the accident, and dizzy spells indirectly related to the accident, medication related as they sounded like more of a reflection of blood pressure shifts than they do from the trauma itself. The examiner opined that the headaches and cognition were more related than not to the in-service accident. He stated that the dizziness might be indirectly related, but appeared to be a combination from his medications and situational difficulties. The examiner opined that the memory changes would be from medication from his multiple injuries, and less likely from the accident. He did not see any need for additional tests. Records on file show that the Veteran received a disability retirement in August 2009 due to his musculoskeletal conditions. With respect to the service-connected tinnitus, the Board notes that the Veteran is already in receipt of the maximum 10 percent rating for this disability, and thus a higher schedular rating is not warranted. 38 C.F.R. § 4.87a, Diagnostic Code 6260. Note (1) to this Code provides that a separate evaluation for tinnitus may be combined with an evaluation under Diagnostic Codes 6100, 6200, 6204, or other Diagnostic Code, except when tinnitus supports an evaluation under one of those Diagnostic Codes. Note (2) provides that only a single evaluation is assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The Veteran here has endorsed having severe headaches and dizziness. Considering the service-connected concussion residuals under the pre-amended version of Diagnostic Code 8045, the weight of the competent and credible evidence does not show any purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., that are related to the service-connected concussion residuals. Hence, the disability must be rated under Diagnostic Code 9304. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007). And, as the evidence does not show that the Veteran has been diagnosed with multi-infarct dementia associated with brain trauma, a rating in excess of 10 percent for concussion residuals is not warranted for his purely subjective complaints under Diagnostic Code 9304. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007); 38 C.F.R. § 4.130, Diagnostic Code 9304 (2012). In order for the Veteran to receive a rating higher than 10 percent under Diagnostic Code 8100 for his headaches, there must be evidence that the headaches are accompanied by characteristic prostrating attacks occurring on average once per month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Throughout the appeal, the Veteran has complained of headaches, but their precise frequency and severity have varied significantly. On examination in November 2006, he reportedly missed work one to two times per month due to headaches, but none were prostrating. At his August 2008 Board hearing, the Veteran testified that he had headaches and dizziness two or three times per week, and his wife testified that he was sometimes incapacitated due to his headaches. On VA examination in May 2009, he said he had headaches every other day and most attacks were prostrating. On VA examination in June 2009, he said he had a headache every day during some weeks, and other weeks up to two or three times per week. They lasted for several hours and he had to lie down. The Board finds that these reports approximate the criteria for a 30 percent rating under Diagnostic Code 8100. See Id.; 38 C.F.R. §§ 4.3, 4.7, 4.20. An even higher 50 percent rating is not warranted, as the weight of the evidence does not show that he has migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Moreover, during the pendency of the appeal, the Veteran continued to be employed until August 2009. Although he is currently retired, this appears to be related to his musculoskeletal disabilities. See August 2009 letter from the Office of Personnel Management. Thus, severe economic inadaptability due to headaches has not been demonstrated. The pre-amended version of Diagnostic Code 8045 could be construed as prohibiting a rating in excess of 10 percent under Diagnostic Code 8100 for headaches, because the symptoms are wholly subjective. However, it does not explicitly prohibit ratings under an alternate diagnostic code. Because both Diagnostic Codes 8045 and 8100 contemplate manifestations of headaches, it would constitute prohibited pyramiding to provide separate 10 and 30 percent ratings. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012). Thus, the Board finds that throughout the rating period on appeal, and rating by analogy, a single increased 30 percent rating under Diagnostic Code 8100 is warranted for the Veteran's prostrating headaches and dizziness as residuals of concussion, replacing the 10 percent evaluation under Diagnostic Codes 8045 and 9304, and the 10 percent evaluation under Diagnostic Code 8100 in effect to this time. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence is against the claim for a rating higher than 10 percent for tinnitus. Thus, the benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. However, no section provides a basis upon which to assign a higher rating. Extraschedular Considerations The Board also finds that the circumstances of this case are not so exceptional or unusual as to render impractical the application of the regular schedular standards and warrant referral of this claim to the Director of Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1). The schedular rating criteria for the Veteran's right knee disability and concussion residuals reasonably describe and contemplate the extent and severity of these disabilities, including insofar as his specific symptoms (e.g., pain, weakness and limitation of motion, etc. of the knee, tinnitus, and concussion residuals including headaches and dizziness) since they are considered in the applicable Diagnostic Codes 5003, 5010, 5260, 5261, 6260, 8045, 8100, and 9304. See Thun v. Peake, 22 Vet. App. 111 (2008). As such, there is no obligation to refer these claims for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER During the period prior to May 23, 2009, an increased rating in excess of 10 percent for the Veteran's right knee arthritis disability is denied. From May 23, 2009, an increased 30 percent rating is assigned for right knee arthritis with limitation of flexion, subject to the laws and regulations governing the payment of monetary benefits. From May 23, 2009, an increased 20 percent rating, but no higher, is assigned for right knee arthritis with limitation of extension of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. An increased rating in excess of 10 percent for the Veteran's tinnitus is denied. Throughout the appeal, an increased rating of 30 percent for concussion residuals to include headaches and dizziness is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ C. L. WASSER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs