Citation Nr: 1340883 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 07-27 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for emphysema. 2. Entitlement to an evaluation in excess of 20 percent for the residuals of a left tibia fracture prior to February 8, 2008. 3. Entitlement to a separate compensable evaluation for left knee instability prior to February 8, 2008, and from January 1, 2009 to July 8, 2013. 4. Entitlement to a separate compensable evaluation for left knee osteoarthritis prior to February 8, 2008, and from January 1, 2009 to July 8, 2013. 5. Entitlement to an evaluation in excess of 20 percent for the residuals of a left tibia fracture, status-post arthroscopic repair, on or after January 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from July 1972 to May 1985. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In January 2011 and April 2013, the Board remanded the issues for further development. After completing the requested development, the Appeals Management Center (AMC) denied the claim (as reflected in an August 2013 supplemental statement of the case (SSOC)) and returned the case to the Board for appellate review. During the pendency of the appeal, in a July 2013 rating decision, the RO assigned additional, separate evaluations for the Veteran's service-connected left knee disability. Specifically, the RO granted service connection for left knee instability and assigned a 10 percent evaluation, effective from July 8, 2013. The RO also granted service connection for left knee osteoarthritis and assigned a 10 percent evaluation, effective from July 8, 2013. Additionally, in a May 2008 rating decision associated with the Veteran's Virtual VA paperless claims file, the RO assigned a temporary 100 percent evaluation for a period of convalescence following arthroscopic surgery surgery to repair lateral and medial meniscus tears, chrondroplasty, and cyst decompression, that was in effect from February 8, 2008, and a 20 percent evaluation was assigned from June 1, 2008. In a September 2008 rating decision, the RO extended the temporary 100 percent evaluation until January 1, 2009, and assigned a 20 percent evaluation from January 1, 2009. Applicable law mandates that 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). Therefore, the claim for an increased rating for the service-connected residuals of a left tibia fracture remains on appeal. The Board notes that the Veteran's appeal also originally included the issue of entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). However, in an August 2013 rating decision, the AMC granted that claim. Therefore, the issue is no longer in appellate status, and no further consideration is necessary. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's claims. A review of the documents in the paperless claims files reveals a brief submitted by the Veteran's representative and VA treatment notes that are pertinent to the increased rating issue on appeal. However, these documents were of record and considered by the AMC in the August 2013 SSOC. FINDINGS OF FACT 1. In an August 2003 rating decision, the RO denied a claim for service connection for emphysema based on the determination that there was no evidence that the Veteran's claimed respiratory disorder was not incurred in or caused by service. 2. The Veteran did not appeal the August 2003 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for emphysema. 3. The evidence received since the August 2003 rating decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for emphysema. 4. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, the Veteran's left knee disability was productive of recurrent subluxation or instability. 5. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, there was x-ray evidence of osteoarthritis with some limitation of flexion to 120 degrees. 6. For the periods prior to February 8, 2008 and beginning on January 1, 2009, the Veteran's residuals of a left tibia fracture were not productive of marked left knee impairment. 7. For either period on appeal, the Veteran has not been shown to have limitation of flexion to 15 degrees; limitation of extension to 20 degrees; ankylosis; the removal of semilunar cartilage or dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; or genu recurvatum. CONCLUSIONS OF LAW 1. The August 2003 rating decision, which denied service connection for emphysema, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2012). 2. The additional evidence received since the August 2003 rating decision is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. For the period prior to February 8, 2008, the criteria for an evaluation in excess of 20 percent for the residuals of a left tibia fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5262. 4. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, the criteria for a 10 percent evaluation for left knee instability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5259-5257. 5. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, the criteria for a 10 percent evaluation for left knee osteoarthritis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5003-5260. 6. For the period beginning on January 1, 2009, the criteria for an evaluation in excess of 20 percent for the residuals of a left tibia fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the Veteran with notice in November 2005 prior to the initial decision on the claims in May 2006. A February 2007 letter also explained how disability ratings and effective dates are determined, in accordance with Dingess, 19 Vet. App. at 473. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id. at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). VA's General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id. at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In this case, the requirements with respect to the content of the notice were met. In the November 2005 notice letter, the RO informed the Veteran of the information and evidence necessary to reopen his previously denied clam for service connection for emphysema and for an increased evaluation for his service-connected left knee disability. Specifically, the letter indicated that, in order to establish service connection, the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. In addition, the November 2005 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence. The November 2005 letter also explained that the Veteran was previously denied service connection for emphysema in an August 2003 decision. The letter stated that new and material evidence was necessary to reopen that claim. It was noted that the evidence must be in existence and be submitted to VA for the first time in order to be new and that the additional existing evidence must pertain to the reason his claim was previously denied in order to be considered material. The letter further explained that new and material evidence must raise a reasonable possibility of substantiating the claim and that the evidence cannot simply be repetitive or cumulative of the evidence considered in the previous denial. In addition, the letter specifically informed the Veteran that the claim for service connection for emphysema was previously denied because a VA examiner opined that the Veteran's claimed respiratory disorder neither occurred in nor was caused service. Rather, he opined that the claimed emphysema was more likely than not due to smoking. Based on the foregoing, the November 2005 notice essentially notified the Veteran to look to the bases for the previous denial to determine what evidence would be new and material to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). The Board notes that the case was readjudicated by the AMC in an August 2013 SSOC; therefore, there is no timing error in this case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available Social Security Administration (SSA) medical records, VA treatment notes, and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. He has not identified any available, outstanding records that are relevant to the claims being decided herein. The Board does note that the Veteran's VA claim file contains references to outstanding VA treatment records dated in 1986 or 1987. In fact, in the April 2013 remand, the Board directed the RO to contact Seattle, Washington, and Walla Walla, Washington, VA medical facilities to obtain and associate all outstanding records of treatment, to specifically include records dated in 1986 and 1987, with the Veteran's paper or Virtual VA paperless claims file. The Board notes that the AMC made several unsuccessful attempts to obtain the outstanding VA treatment notes. In an April 2013 response to a records request from the AMC, the Walla Walla VA Medical Center (VAMC) indicated that it had none of the Veteran's records. The Walla Walla VAMC's records indicated that all available records had been sent to Springfield, Massachusetts, in April 1989. In a May 2013 report of contact, a Springfield VA Outpatient Clinic records clerk informed the AMC that no records for the Veteran, dated in 1986 to 1987, were available. In a June 2013 response to a records request from the AMC, the Puget Sound VA Health Care System (HCS) replied with a negative response and reported that the Veteran was not in their system. In addition, in a July 2013 report of contact, documented that there were no VA treatment records at the Puget Sound VA HCS for the period from 1986 to 1987. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination in May 2003, in connection with his original claim of service connection for a respiratory disorder. He was also provided with VA examinations in March 2006, April 2009, and July 2013, in connection with his claim for an increased rating for his service-connected left tibia fracture. In addition, a VA addendum opinion was provided in August 2013, in connection with the claim for an increased rating. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, as well as his lay assertions and current complaints, and they describe the service-connected left knee disability picture in detail sufficient to allow the Board to make a fully informed determination. Id. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. New and Material Evidence Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board observes that the Veteran's claim of service connection for emphysema was previously considered and denied by the RO in a rating decision dated in August 2003. The Veteran was notified of that decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2012). In August 2005, the Veteran essentially requested that his claim of service connection for emphysema be reopened. However, the rating decision currently on appeal denied reopening the claim because the RO determined that new and material evidence was not submitted. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. As noted above, the August 2003 rating decision denied the Veteran's claim of service connection for emphysema. The evidence of record at that time included the Veteran's service treatment records that were negative for complaints, signs or symptoms of, treatment for, and/or a diagnosis of a respiratory disorder, VA treatment notes, a May 2003 VA examination report, and a June 2003 VA pulmonary function testing report. In that decision, the RO found that the evidence failed to show that the Veteran's claimed respiratory disorder was either incurred in or was caused by service. Rather, the May 2003 VA examiner opined that the Veteran's current respiratory disorder was more likely than not related to his smoking. The evidence associated with the claims file subsequent to the August 2003 rating decision includes VA treatment notes and SSA medical records. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the August 2003 rating decision and finds that this evidence does not constitute new and material evidence that is sufficient to reopen the previously denied claim for service connection for emphysema. The majority of this evidence is certainly new, in that it was not previously of record and is not cumulative or redundant of the evidence already considered. With regard to whether the evidence is material, the Board notes that there is no evidence that the Veteran's claimed respiratory disorder was either incurred in or was caused by service. In fact, no opinions pertaining to an etiology for the current respiratory disorder have been submitted since the August 2003 rating decision. Significantly, the evidence missing at the time of the August 2003 rating decision continues to be absent. Specifically, there remains no evidence showing that the Veteran currently has a respiratory disorder that is related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for emphysema. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, the Veteran's service-connected residuals of a left tibia fracture, status post arthroscopic surgery to repair lateral and medial meniscus tears, chrondroplasty, and cyst decompression, is currently assigned a 20 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262. As discussed above, his service-connected left knee osteoarthritis associated with the residuals of a left tibia fracture is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. His service-connected left knee instability is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5259-5257. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Evaluations of the knee are not limited to limitation of motion under the Rating Schedule. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. In a June 1986 rating decision, the RO granted service connection for the residuals of a left tibia fracture and assigned a 10 percent disability evaluation, effective on May 7, 1986. In August 2005, the Veteran submitted an informal claim for an increased evaluation for his service-connected left disability. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). As discussed above, the Veteran had arthroscopic surgery on his left knee to repair lateral and medial meniscus tears, chrondroplasty, and cyst decompression in February 2008. In a May 2008 rating decision, the RO assigned a temporary 100 percent evaluation for a period of convalescence following the arthroplastic surgery that was in effect from February 8, 2008, and a 20 percent evaluation was assigned from June 1, 2008. In a September 2008 rating decision, the RO extended the temporary 100 percent evaluation until January 1, 2009, and assigned a 20 percent evaluation from January 1, 2009. Since the Veteran was assigned a 100 percent evaluation for his service-connected left knee disability from February 8, 2008 to January 1, 2009, the Board has limited its analysis to reflect increased rating claims for the periods before and after the convalescence period. January 2006 VA x-rays of the bilateral knees showed mild narrowing of the medial compartments of both knees that probably indicated early degenerative joint disease, and a slight chronic deformity of the left lateral tibial plateau. During a March 2006 VA bones examination, the Veteran reported that he had some residual pain and loss of function of his left knee joint. He indicated that he had chronic pain and occasional swelling of the left knee. He stated that his knee stiffened if he sat for any period lasting longer than one hour. He rated his chronic pain at three to four out of ten in severity. He reported that his pain increased to five or six out of ten in severity if exacerbated by walking more than one mile. He related that he worked for a snack company filling vending machines. He reported that his employment required a good deal of physical labor, including lifting, bending, and walking. He presented to the examination wearing a neoprene brace on his left knee. He stated that he took Hydrocodone for pain management. He reported that cold weather and walking any distance over one mile exacerbated his symptoms. He also indicated that he was no longer able to participate in sports like softball and hunting, and he had some decreased functioning in chores, such as lawn mowing or heavy work. On examination, the VA examiner noted that the Veteran's right lower extremity was dominant, but his gait was within normal limits and it was not antalgic. He also indicated that the Veteran had no difficulty rising from a chair. There was no redness or inflammation of the left knee. There was moderate palpable pain on the medial knee joint. The patella was fixed and within normal limits. There was hypertrophy of the tibia. Draw sign was negative. Range of motion testing revealed flexion reduced to 130 degrees from a normal 140 degrees. Extension was full and complete to 0 degrees. The Veteran reported he had joint capsule pain starting at the beginning of each exercise. The examiner noted that it did not appear to limit his range of motion. Valgus grind increased pain in the left lateral capsule. Strength of the left knee was normal. Passive range of motion was essentially equal to active range of motion. There was increased knee joint pain and fatigability with repetitive range of motion over 20 repetitions. A November 2006 VA physical therapy consultation request documented the Veteran's complaints of joint pain, including bilateral knee pain from osteoarthritis. He indicated that physical therapy provided no relief of his symptoms. During a November 2006 VA physical therapy consultation, the Veteran complained of left knee instability. He indicated that his left knee gave out approximately once every six months. He denied a history of falls. A left knee brace was ordered. In a November 2006 VA physical medicine rehabilitation note, the Veteran complained of bilateral knee pain that was more noticeable in his left knee. X-rays of both knees showed narrowing of the medial compartments. On examination, the Veteran had normal range of motion in flexion and extension of both knees. There was no soft tissue swelling or joint effusion. Stress varus and valgus, McMurray's, and drawer sign tests were negative. The diagnosis was osteoarthritis. In January 2007, the Veteran was fitted with a VA issued left knee brace. In a January 2007 VA x-ray report, the interpreting radiologist noted that a recent magnetic resonance imaging (MRI) study showed a cruciate ligament tear in the left knee. The x-rays of the left knee showed mild narrowing and spurring vascular calcifications and a coarse trabecular marking in the patella that mimicked a fracture line. The radiologist noted that the marking was likely developmental. In a June 2007 VA urgent care treatment note, the Veteran complained of worsened chronic pain in his left knee over the past month and significantly over the past weekend. He indicated that he maintained his pain with Vicodin. He presented for treatment wearing a brace on his left knee. The examining physician noted that the Veteran appeared in no acute distress. There was no swelling, redness, or deformity in the left knee. There was mild tenderness along the joint line and minimal crepitation. There was no restriction to range of motion. The diagnosis was degenerative arthritis. Depo-Medrol injections were recommended, but the Veteran declined and stated that he wanted a "permanent fix to the solution." In another June 2007 VA treatment note, the Veteran reported that his prescribed Vicodin was no longer effective to manage his left knee pain. He was prescribed Oxycodone and instructed to discontinue taking Vicodin. The prescribing physician noted that the Veteran's increased pain may have been secondary to increased osteoarthritis progression. In a June 2007 VA follow-up note, the Veteran indicated that his pain had improved after he began taking Oxycodone. June 2007 VA x-rays of the left knee showed minimal medial compartment joint space narrowing, that the interpreting radiologist indicated was not as prominent as on a previous study; minimal spurring of the tibial spines; possible cystic change in the lateral tibial plateau that was stable in appearance; and calcification of the proximal tibiofibular inerosseous ligament. A November 2007 VA MRI study of the left knee showed the Veteran had bilateral meniscus tears in the inner rim of the body and posterior horn of the medial meniscus, a vertical tear in the most peripheral aspect of the body of the medial meniscus reaching the inferior articular surface, and a complex degenerative tear involving the body and anterior horn of the lateral meniscus. The MRI also showed strain of the lateral collateral ligament, articular cartilage defects in the medial and lateral joint compartments, and changes suggestive of prior or concurrent inflammatory changes in the Hoffa's fat pad. In a December 2007 VA orthopedic surgery consultation, the Veteran complained of clicking and popping of his left knee and occasional instability. He primarily complained of pain. He stated that physical therapy did not provide him any relief. He reported that he had pain with prolonged sitting with his knee in flexion and ascending and descending stairs. He indicated that he was working and that he delivered ice and ice cream. On examination, the physician noted that there was no effusion, erythema, soft tissue swelling, or ecchymoses of the left knee. Sensation was grossly intact to light touch. Range of motion testing revealed extension to 0 degrees and flexion to 120 degrees. The diagnosis was a left knee meniscal tear and surgery was to be scheduled. In February 2008, the Veteran underwent a left knee arthroscopic medial and lateral meniscectomy and chondroplasty. February 2009 VA x-rays of the bilateral knees showed degenerative changes in both knees that were more severe in the left knee. In an April 2009 VA joints examination, the Veteran reported that he had left knee joint deformity, giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, and swelling. He denied incoordination, episodes of dislocation or subluxation, and flare-ups of joint disease. He acknowledged no constitutional symptoms of arthritis, and he denied any incapacitating episodes of arthritis. He indicated that he was unable to walk more than a few yards. He reported that he intermittently, but frequently, wore a brace on his left knee. On examination, the VA examiner noted that the Veteran's gait was antalgic. There was no other evidence of abnormal weight bearing. The examiner noted that there was no inflammatory arthritis. He noted that there was a bony left knee joint enlargement with tenderness and guarding of movement. There was no crepitation, mass behind the knee, clicks or snaps, grinding, instability, weakness, patellar abnormality, meniscus abnormality, abnormal tendons or bursas, and no other knee abnormalities. Range of motion testing revealed left knee flexion from 0 to 78 degrees and normal extension to 0 degrees. There was objective evidence of pain with active motion in the left knee and objective evidence of pain following repetitive motion. There was no additional limitations after three repetitions of range of motion testing. The examiner noted that February 2009 VA x-rays of the left knee showed degenerative changes and no fractures or dislocation. The examiner noted that the Veteran's usual occupation was a route driver delivering ice cream and ice to convenience stores. The Veteran was currently unemployed for one to two years. He indicated that his employer required medical clearance before he could return to his employment. During a July 2013 VA knee examination, the Veteran reported that his February 2008 left arthroscopic lateral and medial meniscectomies provided him no benefit and he has been offered a total left knee replacement. He denied the use of any assistive devices. Range of motion testing showed the Veteran had extension to 0 degrees with no objective evidence of painful motion. He had flexion to 105 degrees with objective evidence of painful motion at 100 degrees. He was able to perform repetitive use testing with three repetitions. He had post-test flexion that ended at 105 degrees and post-test extension to 0 degrees. There was no additional limitation in range of motion of the knee following repetitive use testing. The Veteran indicated that he had functional loss or functional impairment of his left knee, including less movement than normal, weakened movement, and pain on movement. He had no tenderness to palpation of the joint line or soft tissues of the left knee. Muscle strength testing revealed left knee extension and flexion with active movement against some resistance. He demonstrated normal anterior stability and posterior stability. He had 0 to 5 millimeters of medial-lateral instability. There was no evidence or history of recurrent patellar subluxation or dislocation. The VA examiner opined that the Veteran's bilateral knee osteoarthritis rendered him unable to obtain or maintain employment consistent with his educational or occupational experience. Specifically, he noted that any such job would require weight-bearing, lifting, carrying, bending, and stooping, and the Veteran was unable to perform these functions due to his osteoarthritis. In an August 2013 VA addendum opinion, the VA examiner opined that the Veteran's bilateral knee disability affected his ability to perform sedentary employment because of knee stiffness and pain. He indicated that if the Veteran was seated at a desk, he had to change positions approximately every ten minutes; therefore, he would not be able to perform sedentary employment. In a September 2013 post-remand brief, the Veteran's representative stated that the Veteran's "present condition and level of disability does not appear to interfere with employment." He noted that the Veteran contends that the July 2013 VA examination did not "take into account the degree or level of left knee instability that at times results in his being off balanced and unable to effectively propel himself forward without increased pain." Based on the findings of the July 2013 VA examination, the RO assigned separate 10 percent evaluations for left knee instability and osteoarthritis. The effective dates assigned were the dates of the examination wherein the Veteran reported he had an ascertainable increase in the severity of his left knee symptoms. However, the Board notes that the evidence of record shows the Veteran complained of instability and x-rays showed evidence of osteoarthritis in the left knee prior to his February 2008 arthroscopic surgery surgery. Specifically, during a November 2006 VA physical therapy consultation, the Veteran complained of left knee instability and indicated that his left knee gave out on him approximately once every six months. In January 2007, he was issued a knee brace that he wore during treatment until his February 2008 arthroscopic surgery. He also complained of instability during a December 2007 VA orthopedic surgery consultation. Therefore, the Board finds that the Veteran is warranted to a separate 10 percent evaluation for left knee instability for the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, under 38 C.F.R. § 4.71a, Diagnostic Codes 5259-5257. In addition, January 2006, January 2007, and June 2007 VA x-rays showed degenerative joint disease and chronic deformity of the left lateral tibial plateau. During the March 2006 VA bones examination, the Veteran demonstrated left knee flexion reduced to 130 degrees and normal extension to 0 degrees. During the December 2007 VA orthopedic surgery consultation, he demonstrated left knee flexion to 120 degrees and normal extension to 0 degrees. Diagnostic Code 5003 states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint affected. In this case, Diagnostic Code 5260, pertaining to limitation of flexion of the leg, is appropriate. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. Here, it is clear that the Veteran had flexion that exceeded 60 degrees to at least 120 degrees. However, Diagnostic Code 5003 states that when there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation of motion code, a 10 percent rating will be assigned for each affected major joint. Therefore, the Board finds that the Veteran is warranted to a separate 10 percent evaluation for left knee osteoarthritis for the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260. Prior to February 8, 2008, the date of his arthroscopic left knee surgery, and after January 1, 2009, the end of his convalescence period in which he warranted a temporary 100 percent evaluation for his left knee disability, the Veteran was assigned a 20 percent evaluation based upon his reports of pain and limitation of motion of a major joint under Diagnostic Code 5262 for impairment of the tibia and fibula. 38 C.F.R. § 4.71a. He did not meet the criteria for an evaluation in excess of 20 percent for the residuals of a left tibia fracture during these periods. Diagnostic Code 5262 states that a 20 percent evaluation is assigned where there is malunion of the tibia and fibula with moderate knee or ankle disability. In order to warrant a higher evaluation of 30 percent, there must be evidence of malunion of the tibia and fibula with marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words "slight," "moderate," "marked," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Prior to February 8, 2008, there is no evidence of a marked left knee disability. In fact, prior to February 8, 2008, the Veteran worked for a snack company filling vending machines and as a delivery man, delivering ice and ice cream. During the March 2006 VA bones examination, he reported that his employment required a good deal of physical labor, including lifting, bending, and walking. He reported that he was able to walk up to one mile without exacerbating his knee pain and he only had some decreased functioning in chores, such as lawn mowing or heavy work around the house. In addition, the during June 2007 VA treatment, the Veteran indicated that his pain had improved after he began taking Oxycodone for pain management. For the period after January 1, 2009, the Board notes that the Veteran remained unemployed following his February 8, 2008 arthroscopic surgery. During the April 2009 VA joints examination, he indicated that he was unable to walk more than a few yards and he remained unemployed because his employer required medical clearance before he could return to his job delivering ice and ice cream to convenience stores. During the July 2013 VA examination, the Veteran reported that he was offered a total left knee replacement. The examiner opined that the Veteran's bilateral knee osteoarthritis rendered him unable to obtain or maintain employment consistent with his occupational experience because he was unable to perform heavy weight-bearing, lifting, carrying, bending, and stooping. In his August 2013 addendum opinion, the VA examiner also opined that the Veteran was unable to perform sedentary employment because of knee stiffness and pain. He indicated that if the Veteran was seated at a desk, he had to change positions approximately every ten minutes. The Board notes that the Veteran's left knee disability has rendered him unemployable. However, the Board also notes that the Veteran has already been granted a total evaluation (100 percent) based upon individual unemployability due to service-connected disabilities (TDIU) in an August 2013 rating decision. He has not appealed the effective date of that award. Nonetheless, the Board has determined that the Veteran does not warrant an increased 30 percent evaluation under Diagnostic Code 5262. In a September 2013 post-remand brief, the Veteran's representative stated that the Veteran's "present condition and level of disability does not appear to interfere with employment." Therefore, the Board finds that the evidence does not show marked disability of the left knee. In considering the criteria of Diagnostic Codes 5260 and 5261, there is no evidence that the Veteran demonstrated a functional restriction in flexion to 15 degrees or less, or that he demonstrated a functional restriction in extension limited to 20 degrees or more, during either period on appeal. Although he had some limitation of motion on VA examination in March 2006 (flexion to 130 degrees and normal extension to 0 degrees with joint capsule pain starting at the beginning of each exercise), during a December 2007 VA orthopedic surgery consultation (flexion to 120 degrees and extension to 0 degrees), April 2009 (flexion to 78 degrees and normal extension to 0 degrees with objective evidence of pain on active motion and following repetitive motion), and July 2013 (flexion to 105 degrees with objective evidence of painful motion at 100 degrees and extension to 0 degrees with no objective evidence of painful motion), the limitation of flexion fell far short of that required for a 30 percent disability rating under Diagnostic Codes 5260 or 5261. In addition, during the July 2013 VA examination, the examiner noted that there was no additional limitation in range of motion of the knee following repetitive use testing. Even when the Veteran's greatest restriction of flexion is considered along with the effect of pain and repetitive motion, the evidence shows that he retained greater remaining function than 15 degrees of flexion of the left knee for both periods on appeal. The Board also finds that Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocation of semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the evidence does not show that the Veteran has any of these disabilities. Moreover, the Veteran and his representative have not contended that he has such symptomatology. Therefore, a separate or higher rating is not warranted under Diagnostic Codes 5256, 5258, 5259, and 5263 for either period on appeal. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's left knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent ratings, and no higher, for the entire appeal period. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's left knee is contemplated in the assigned 20 percent disability evaluations prior to February 8, 2008 and after January 1, 2009. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation for this time period. In fact, the July 2013 VA examiner noted that the Veteran had no limitation of motion due to pain, weakness, or lack of endurance following repetitive use. Notably, the Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that the Veteran is competent to describe his current symptoms, such as pain, swelling, and stiffness. Lay persons are competent to provide testimony as to observable symptoms and manifestations of a disorder. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Based on the foregoing, the Board finds that the preponderance of the evidence weighs against a finding that higher ratings are warranted in this case for either period on appeal for the residuals of a left tibia fracture. However, as discussed above, the Board finds that the evidence warrants separate 10 percent evaluations for left knee instability and osteoarthritis for the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of pain, swelling, and stiffness are fully considered in the assignment of the 20 percent disability rating prior to February 8, 2008, and in the assignment of the 20 percent disability rating beginning on January 1, 2009. As discussed above, the Board has granted additional 10 percent evaluations for left knee instability and osteoarthritis for the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, and the RO previously awarded 10 percent evaluations for the same, effective from July 8, 2013. Moreover, there are higher ratings available under the diagnostic codes for various symptoms of the disorder, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left knee disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Lastly, the Board notes that the Veteran has already been granted a total evaluation (100 percent) based upon individual unemployability due to service-connected disabilities (TDIU). He has not appealed the effective date of that award. ORDER As new and material evidence has not been presented, the claim of service connection for emphysema is not reopened, and the appeal is denied. An evaluation in excess of 20 percent for the residuals of a left tibia fracture prior to February 8, 2008, is denied. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, a 10 percent evaluation for left knee instability is granted, subject to the provisions governing the award of monetary benefits. For the periods prior to February 8, 2008 and from January 1, 2009 to July 8, 2013, a 10 percent evaluation for left knee osteoarthritis is granted, subject to the provisions governing the award of monetary benefits. An evaluation in excess of 20 percent for the residuals of a left tibia fracture, status-post arthroscopic repair, on or after January 1, 2009, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs