Citation Nr: 1341069 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 09-38 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating (evaluation) in excess of 20 percent for right knee status post surgical repair (hereinafter "right knee disability"). 2. Entitlement to an increased rating (evaluation) in excess of 10 percent for left knee status post surgical repair (hereinafter "left knee disability"). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1987 to April 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The case was previously before the Board in March 2012, wherein it was remanded for additional development, specifically, with respect to the knee disabilities, to provide the Veteran with an additional VA examination and to obtain additional VA treatment records. A VA examination was obtained in May 2012 and, as discussed below, the Board finds it adequate for rating purposes. The outstanding VA treatment records have also been obtained and associated with the claims file. Thus, the Board finds that there has been substantial compliance with the prior Board remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The case was returned to the Board for appellate consideration and is now ready for disposition. In the March 2012 Board remand, the Board also, in part, remanded the Veteran's claim for entitlement to service connection for a stomach disorder to the Appeals Management Center (AMC) for additional development. In a December 2012 rating decision, the AMC granted service connection for gastroesophageal reflux disease (GERD). As the December 2012 rating decision acted as a full grant of the claim for service connection for GERD, that issue is rendered moot, and is not in appellate status before the Board Upon implementation of this decision, additional actions will be required by the RO to adjust the code sheet use of diagnostic codes, the use of names of the knee disabilities to clarify the disabilities the Veteran currently has, and to associate the correct ratings with each disability. As will be explained below, the RO will need to place a separate arthritis rating for both the right and left knee (Diagnostic Code 5010-5003) on the code sheet to reflect the separate ratings assigned for arthritis of each knee. The RO will need to keep separate instability ratings (Diagnostic Code 5257) on the code sheet to reflect that separate ratings for instability have continually been in effect for both knees from since April 1992 (granted in the December 1992 rating decision). Such actions to identify the separate knee disabilities of instability and arthritis are to be taken regardless of the effect of the amputation rule at 38 C.F.R. § 4.68 (2013), which provides that 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5164 (providing a 60 percent rating for amputation of the thigh not improvable by prosthesis controlled by natural knee action). In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. For the entire rating period, the Veteran' right knee instability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, a subjective feeling of instability, occasional buckling and giving way, and the regular use of a knee brace, more nearly approximating moderate instability. 2. For the entire rating period, the Veteran's right knee degenerative joint disease has been manifested by X-ray findings of arthritis with painful motion, slight swelling, and stiffness that is productive of noncompensable limitation of motion. 3. For the entire rating period, the Veteran's right knee disability has not been manifested by ankylosis, severe recurrent subluxation or lateral instability, limitation of flexion to 30 degrees, limitation of extension to 15 degrees, dislocation of semilunar cartilage, malunion or non-union of the tibia and fibula, or genu recurvatum with weakness or insecurity in weight-bearing objectively demonstrated. 4. For the entire rating period, the Veteran' left knee instability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, locking in his knee, and the regular use of a knee brace, more nearly approximating slight instability. 5. For the entire rating period, the Veteran's left knee degenerative joint disease has been manifested by X-ray findings of arthritis with painful motion, slight swelling, and stiffness that is productive of noncompensable limitation of motion. 6. For the entire rating period, the Veteran's left knee disability has not been manifested by moderate recurrent subluxation or lateral instability, limitation of flexion to 30 degrees, limitation of extension to 15 degrees, dislocation of semilunar cartilage, malunion or non-union of the tibia and fibula, or genu recurvatum with weakness or insecurity in weight-bearing objectively demonstrated. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an evaluation in excess of 20 percent for right knee instability has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257(2013). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent rating for right knee degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5003 (2013). 3. For the entire period on appeal, the criteria for an evaluation in excess of 10 percent for left knee instability has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5257 (2013). 4. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate 10 percent rating for left knee degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5003 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the RO provided notice to the Veteran in December 2008, prior to the initial adjudication of the claim in March 2009. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, as well as of VA and the Veteran's respective duties for obtaining evidence. The December 2008 notice letter also informed the Veteran how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, a copy of the March 2012 Board remand, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in January 2009 and May 2012. Prior to the May 2012 VA examination, the Veteran asserted that his service-connected bilateral knee disabilities had worsened. VA's General Counsel has interpreted that, when a veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95; see also, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); 38 C.F.R. § 3.327 (2013). Accordingly, pursuant to a March 2012 Board remand, the Veteran was afforded another VA examination in May 2012. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. Additionally, while the Veteran, through his representative in an October 2013 informal hearing presentation, contended that his bilateral knee disabilities are severe enough to warrant increased evaluations, the Veteran has not questioned the adequacy of the May 2012 VA examination or contended that his disability has worsened since the most recent VA examination. The Veteran was offered the opportunity to testify at a hearing before the Board, but declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Ratings for Right and Left Knee Disabilities Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether a staged rating is warranted; however, as will discuss in more detail below, the Board finds that staged ratings for any of the Veteran's knee disabilities is not appropriate in this case. The Diagnostic Codes relevant to this case are 5003, 5010, and 5256-5263. The VA General Counsel has interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. Likewise, the VA General Counsel has also interpreted that, when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under Diagnostic Codes 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is in receipt of a 20 percent disability rating for the right knee and a 10 percent disability rating for the left knee rated under Diagnostic Code 5257 (rating for instability and subluxation). This case involves a long and potentially confusing procedural history. For this reason, additional procedural explanation is required to understand the right and left knee disability issues currently on appeal. Historically, the RO granted service connection for the Veteran's right and left knee disabilities (described as status post surgical repair of both knees) in a December 1992 rating decision and assigned 10 percent initial disability ratings for slight instability for each knee (made effective from April 1992) under Diagnostic Code 5257. In a July 1995 rating decision, the RO continued the 10 percent disability rating for slight instability of the Veteran's left knee and assigned an increased rating of 20 percent for moderate instability of the right knee (made effective the date of claim in January 1995) under Diagnostic Code 5257. The Veteran submitted the current claim for increased rating of right and left knee disabilities in October 2008. Following development, the RO issued a rating decision in March 2009. A March 2009 rating decision continued a 20 percent rating for moderate instability of the right knee and 10 percent rating for slight instability of the left knee under Diagnostic Code 5257. The Veteran contends that his right and left knee disabilities have manifested by more severe symptomatology than that contemplated by the respective 20 and 10 percent ratings assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for the entire increased rating period. Specifically, the Veteran contends that his right and left knee disabilities are manifested by severe instability, with episodes of locking and giving way. The Veteran has also reported other symptoms of knee impairment that pertain to a separate rating for knee arthritis, namely, pain and limitation of motion. In a March 2009 notice of disagreement, the Veteran stated that he has limited motion, constant pain, and instability in both knees. He reported wearing knee braces, presumably for instability. In an October 2009 substantive appeal (VA Form 9), the Veteran reported that his knees were constantly locking up and giving out. In an October 2013 informal hearing presentation, the Veteran, through his representative, contended that his bilateral knee disabilities are severe enough to warrant increased evaluations. Diagnostic Code 5257 contemplates impairment of the knee manifested by recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2013). Having reviewed all the evidence of record, both lay and medical, the Board finds that the criteria for an increased rating greater than 20 percent for instability under Diagnostic Code 5257 for the Veteran's right knee have not been met or more nearly approximated for the entire rating period and the criteria for an increased rating greater than 10 percent for instability for the Veteran's left knee have not been met or more nearly approximated for the entire rating period. For the entire rating period, the Veteran has experienced right knee instability manifested by difficulty ascending and descending stairs, grinding and popping in his knee, a subjective feeling of instability, occasional buckling and giving way, and the regular use of a knee brace, more nearly approximating moderate instability. For the entire rating period, the Veteran has experienced left knee instability manifested by difficulty ascending and descending stairs, grinding and popping in his knee, locking in his knee, and the regular use of a knee brace, more nearly approximating slight instability. At the January 2009 VA examination, the Veteran reported increasing pain over the last number of years in both knees and that he is unable to walk prolonged distances, climb too many stairs, run, or jump. The Veteran reported grinding and popping in both knees. The VA examiner noted that there was no mechanical instability or locking in either knee. The VA examination report noted no ligamentous laxity on either side on medial or lateral stress, anterior and posterior drawer signs, the Lachman test, and patellar crepitus were all negative bilaterally. The report notes that joint line tenderness was positive bilaterally in the medial as well as lateral compartments. The report notes that there was no subluxation of either knee. A February 2009 VA treatment record notes that the Veteran reported pain ascending and descending stairs and that his right knee occasionally buckles and gives way, with subjective feeling of instability. The treatment record notes that the Veteran denied locking. The February 2009 VA treatment record notes the right knee had positive Lachman test and positive anterior drawer (anterior instability), a negative posterior drawer test (no posterior instability), and negative for medial lateral instability based on valgus/varus pressure to the knee. The left knee was negative for anterior instability, posterior instability, and medial-lateral instability. April through May 2009 VA treatment records note that the Veteran reported that his right knee had improved with no bouts of instability or buckling recently. A July 2009 VA treatment record notes that the Veteran reported that pain occurred in both knees when they "lock up." A May 2011 VA treatment record notes left knee swelling and that the Veteran was given pain medication and a knee brace. An October 2011 VA treatment record notes that the Veteran had negative McMurray, Lachman, anterior drawer, and positive drawer tests. At the May 2012 VA examination, the Veteran reported he has had increased pain in both knees. The Veteran reported not being able to walk prolonged distances or climb too many stairs as well as being unable to run or jump. The Veteran reported stiffness in both knees in the morning and after sitting for an extended period of time. The Veteran reported that generally he does not notice major swelling, but that he does have slight swelling in both knees by the end of each day. The Veteran reported grinding, popping and pain in both knees on a daily basis and that he wears knee braces on an almost daily basis. The May 2012 VA examiner noted that there was no mechanical instability or locking of either knee. The VA examination report notes that testing for anterior, posterior and medial-lateral instability was found to be normal for both knees. The report notes no evidence or history of recurrent patellar subluxation or dislocation in either knee. Imaging studies performed on both knees reflect no x-ray evidence of patellar subluxation. The VA examiner noted that the Veteran uses a brace for his knees on a regular basis. Based on the above, the evidence of record does not establish that the Veteran's right knee disability warrants an evaluation in excess of 20 percent under Diagnostic Code 5257 for any period on appeal as the weight of the evidence does not establish that the Veteran's right knee disability is characterized by recurrent subluxation or lateral instability that is severe. As noted above, the Veteran has reported that he has instability in both knees characterized by episodes of locking and giving way, the daily use of knee braces, and difficulty ascending and descending stairs; however, both the January 2009 and May 2012 VA examination reports note no mechanical instability, locking or subluxation in the right knee. Additionally, the May 2012 VA examination report notes that imaging studies performed on the right knee reflect no x-ray evidence of patellar subluxation. The Veteran reported, as reflected in a February 2009 VA treatment record, that reported pain ascending and descending stairs and that his right knee occasionally buckles and gives way, with subjective feeling of instability. The VA treatment record also indicates that some objective instability was noted in the right knee. At the May 2012 VA examination, the Veteran reported grinding, popping and pain in both knees on a daily basis and that he wears knee braces on an almost daily basis. However, this level of instability is more closely approximated by the 20 percent disability rating under Diagnostic Code 5257 already assigned to the right knee for moderate instability. Based on the above, the evidence of record does not establish that the Veteran's left knee disability warrants an evaluation in excess of 10 percent under Diagnostic Code 5257 for any period on appeal as the weight of the evidence does not establish that the Veteran's left knee disability is characterized by recurrent subluxation or lateral instability that is moderate. As noted above, the Veteran has reported that he has instability in both knees characterized by episodes of locking and giving way, the daily use of knee braces, and difficulty ascending and descending stairs; however, both the January 2009 and May 2012 VA examination reports note no mechanical instability, locking or subluxation in the left knee. Additionally, the May 2012 VA examination report notes that imaging studies performed on the left knee reflect no x-ray evidence of patellar subluxation. A February 2009 VA treatment record notes that the left knee was negative for anterior instability, posterior instability, and medial-lateral instability. A July 2009 VA treatment record notes that the Veteran reported that pain occurs in both knees when they "lock up." At the May 2012 VA examination, the Veteran reported grinding, popping and pain in both knees on a daily basis and that he wears knee braces on an almost daily basis. However, this level of instability is more closely approximated by the 10 percent disability rating under Diagnostic Code 5257 already assigned to the left knee for slight instability. Based on the above evidence, the Board finds that a disability rating in excess of 20 percent under Diagnostic Code 5257 for the right knee is not warranted. For the entire period on appeal, the Veteran's right knee disability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, a subjective feeling of instability, occasional buckling and giving way, and the regular use of a knee brace, more nearly approximating moderate instability under Diagnostic Code 5257. Based on the above evidence, the Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5257 for the left knee is not warranted. For the entire period on appeal, the Veteran's left knee disability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, locking in his knee, and the regular use of a knee brace, more nearly approximating slight instability under Diagnostic Code 5257. 38 C.F.R. §§ 4.3, 4.7. Separate Ratings for Knee Arthritis The Board has also considered whether assignment of separate evaluations under any other of the applicable diagnostic codes is appropriate in this case. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98 (when X-ray findings of arthritis are present and a veteran's knee disability is evaluated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in limitation of motion and/or objective findings or indicators of pain). The Board finds that, for the entire rating period on appeal, the criteria for separate 10 percent disability ratings under Diagnostic Code 5010-5003 for right and left knee arthritis with painful motion that is manifested to a noncompensable (less than 10 percent) degree, is supported by the evidence in this case. Diagnostic Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Diagnostic Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Notes (1) and (2). The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Having reviewed the evidence of record, both lay and medical, the Board finds that the criteria for separate 10 percent disability ratings for right and left knee arthritis with painful motion that is manifested to a noncompensable (less than 10 percent) degree have been met under Diagnostic Code 5010-5003. VAOPGCPREC 23-97, 9-98. Throughout the entire rating period on appeal, the Veteran's bilateral knee disabilities have been manifested by symptoms of X-ray findings of arthritis with painful motion, slight swelling, and stiffness that is productive of noncompensable limitation of motion as required for 10 percent ratings under Diagnostic Code 5010-5003. 38 C.F.R. § 4.71a. An August 2007 VA treatment record notes that the Veteran reported bilateral knee pain that was worsened after a day on his feet at work. A July 2008 VA treatment record notes that the Veteran reported bilateral knee pain with right knee pain substantially greater than left. The record notes marked pain with walking. A January 2009 VA treatment record notes normal range of motion in the knee joints with no tenderness. At the January 2009 VA examination, the Veteran reported increasing pain over the last number of years in both knees and that he is unable to walk prolonged distances, climb too many stairs, run, or jump. The Veteran reported morning stiffness in both knees and minor swelling in both knees. The Veteran reported more pain by the end of the day, during cold weather, after prolonged walking, and after climbing significant stairs. Objective range of motion testing at the January 2009 VA examination revealed decreased range of motion in both knees with flexion in both knees to 130 degrees with some pain near the end range of flexion. Upon repetition, objective range of motion testing found no increase in pain, fatigability, lack of endurance, or loss of range of motion. Traumatic degenerative joint disease of a moderate degree for both knees was noted on the examination report. The VA examiner noted that, after prolonged hiking or significant stairs, the Veteran may have a feeling of fatigability and more painful motion. A February 2009 VA treatment record notes that the Veteran had decreased range of motion in both knees with right knee flexion to 100 degrees with pain and left knee flexion to 120 degrees without pain. The VA treatment record notes early degenerative joint disease. April 2009 VA treatment records note that the Veteran had decreased range of motion in his right knee from 0 to 95/111 with pain limiting flexion range and then decreased range of motion in his right knee from 0 to 115/124 with pain limiting flexion range in a subsequent April 2009 VA treatment record. A May 2009 VA treatment record notes that the Veteran had decreased range of motion in his right knee with flexion from 0 to 117/124 degrees with pain limiting flexion. A July 2009 VA treatment record notes that the Veteran has osteoarthritis in both knees. An August 2010 VA treatment record notes the Veteran has been attending physical therapy and has normal range of motion in his knees. A March 2011 VA treatment record noted normal range of motion in the Veteran's knees. An October 2011 VA treatment record noted that the Veteran had full extension and flexion of his left knee. At the May 2012 VA examination, the Veteran was diagnosed with moderate degenerative joint disease of both knees. Imaging studies performed on both knees reflect arthritis of both knees. The Veteran reported flare-ups of pain in both knees by the end of the day that last for approximately two hours, required the use of icepacks, and that he had more pain walking during flare-ups. The Veteran reported more pain during cold weather, after prolonged walking, and after climbing many stairs. The Veteran reported swelling of his left knee in May 2011 that lasted one week. The Veteran reported generally not noticing major swelling in either knee, but that he does notice slight swelling by the end of the day in both knees. Objective range of motion testing at the May 2012 VA examination revealed decreased range of motion in the Veteran's right knee with flexion to 130 degrees, with painful motion beginning at 125 degrees, and extension to 0 degrees, with evidence of painful motion at 0 degrees. Objective range of motion testing found decreased range of motion in the Veteran's left knee with flexion to 130 degrees, with painful motion beginning at 125 degrees, and extension to 0 degrees, with no objective evidence of painful motion. Upon repetition, objective range of motion testing found no additional loss in degree of either flexion or extension in either knee. The VA examination report notes that the Veteran did not have any functional loss or impairment of his knees or lower leg. The report notes that the Veteran had tenderness and pain to palpation for joint line or soft tissues of both knees. Based on the evidence above, the Board finds that the Veteran's bilateral degenerative joint disease has more nearly approximated the criteria for separate 10 percent disability ratings, but not higher, through the entire appeal period under Diagnostic Code 5010-5003 based on arthritis with painful, but noncompensable, limitation of motion. "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening." Webster's Medical Desk Dictionary 501 (1986). See Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential decision citing medical authority to show that degenerative joint disease is a form of arthritis); Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection). Specifically, the Board finds that the Veteran's right and left knee arthritis have been productive of painful motion with X-ray evidence of arthritis, but noncompensable limitation of flexion or extension for the entire rating period, even with considerations of additional limitations due to pain and reported flare ups of the knee disabilities. The Veteran has not endorsed, and the evidence does not otherwise show, that additional limitation of motion due to pain and swelling, including during flare ups meets the level of a compensable limitation (e.g., limited to 45 degrees in flexion or 10 degrees in extension). 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. See DeLuca; see also 38 C.F.R. §§ 4.40, 4.59. The Board has applied of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra for the entire appeal period to find the additional limitations of motion due to pain, in reaching its finding that the Veteran has limitation of motion to a noncompensable degree. Although the January 2009 and May 2012 VA examinations reports note that the Veteran experienced pain, such findings do not provide for a higher disability rating than 10 percent in this case. Even considering the additional motion limitation upon repetition to 95 degrees with pain limiting flexion for the right knee evidenced at in the April 2009 VA treatment records, the degree of impairment does not warrant a higher evaluation than 10 percent based on limitation of motion. See VAOPGCPREC 9-98 (motion of a joint effectively ends where pain begins). Such ranges of motion are not compensable under Diagnostic Codes 5260 or 5261. 38 C.F.R. § 4.71a. In this regard, as noted above, the Veteran had near full range of motion during the appeal period even with consideration of pain that limits motion. The range of motion for extension was 0 degrees at the May 2012 VA examination for both knees, which does not warrant a compensable rating based on extension. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The range of motion for flexion was 130 degrees, both initially and upon repetition, for both knees at the January 2009 VA examination; 100 degrees with pain for the right knee and 120 degrees without pain for the left knee as evidenced in a February 2009 VA treatment record; 111 degrees initially and 95 degrees upon repetition for the right knee as reflected in April 2009 VA treatment records; 124 degrees initially and 115 degrees upon repetition for the right knee as reflected in April 2009 VA treatment records; 124 degrees initially and 117 degrees upon repetition for the right knee as reflected in May 2009 VA treatment records; and, 130 degrees with painful motion beginning at 125 degrees for both knees, both initially and upon repetition. None of the range of motion measures warrants a compensable rating based on flexion. See id., Diagnostic Code 5260. The Board finds that the multiple range of motion tests as highly probative evidence that the Veteran has not experienced limitation of flexion to such a compensable degree. Additionally, the Veteran has not alleged that he has limitation of flexion to 30 degrees to warrant a rating in excess of 10 percent. During the entire appeal period, the limitation of motion did not more nearly approximate extension limited to 15 degrees or more, or flexion limited to 30 degrees or less, as needed for a 20 percent evaluation, even with consideration of the additional limitation due to pain. The evidence also does not show compensable limitation of motion of extension (10 degrees) and limitation of motion of flexion (45 degrees) to warrant separate compensable ratings for both limitation of extension and limitation of flexion. See VAOPGCPREC 09-04 (separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint). Therefore, a higher disability rating in excess of 10 percent is not warranted under Diagnostic Codes 5260 or 5261 for limitation of extension and flexion. 38 C.F.R. § 4.71a. Thus, the evidence demonstrates entitlement to separate 10 percent evaluations, but no higher, for arthritis with painful motion of the right and left knees under Diagnostic Code 5010-5003 throughout the rating period on appeal. The Board also finds that no other higher or separate rating is warranted under any of the other diagnostic codes pertaining to the knee. For point of explanation, ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). As there is no lay or medical evidence of ankylosis, the Board finds that Diagnostic Code 5256 does not apply. There is no evidence the Veteran has undergone a knee replacement, so Diagnostic Code 5055 is also inapplicable. 38 C.F.R. § 4.71a. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of impairment of the tibia or fibula, and no evidence of genu recurvatum. Diagnostic Code 5258 addresses dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. A January 2009 VA treatment record notes that the Veteran had bilateral degenerative meniscal tears on the left knee. The treatment record notes medial joint compartment articular cartilage thinning. The May 2012 VA examination report notes that the Veteran has had a meniscal tear (semilunar cartilage condition) in both knees but notes no joint locking, pain, or effusion. The report notes that the Veteran had a meniscectomy (ACL repair surgeries at the time of medial meniscectomies) in both knees in 1988 and 1989 resulting in traumatic degenerative joint disease with chronic pain in both knees. However, the right and left meniscus has been surgically removed with relief of symptoms associated with a torn meniscus and not dislocated as contemplated under Diagnostic Code 5258, so this code does not apply. Diagnostic Code 5259 addresses removal of symptomatic semilunar cartilage and, although the records show the Veteran underwent meniscectomies on both knees, the highest available rating under Diagnostic Code 5259 is 10 percent; thus, it does not allow for a higher rating. Id. Finally, the Board notes that the Veteran has residual surgical scars on both knees from when he underwent ACL repair surgeries and medial meniscectomies in 1988 and 1989. The May 2012 VA examination report notes that the scars are not painful or unstable and the total area of all related scares was not greater than 39 square centimeters, nor has the Veteran alleged otherwise; therefore, the Board finds that the Veteran is not entitled to a separate compensable rating under Diagnostic Codes 7800 through 7805. 38 C.F.R. § 4.118. Based on the above evidence, the Board finds that a disability rating in excess of 20 percent under Diagnostic Code 5257 for the right knee is not warranted, but that a separate 10 percent rating for arthritis with painful, but noncompensable limitation of motion under Diagnostic Code 5010-5003 is warranted. For the entire period on appeal, the Veteran's right knee disability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, a subjective feeling of instability, occasional buckling and giving way, and the regular use of a knee brace, more nearly approximating moderate instability under Diagnostic Code 5257 as well as by X-ray findings of arthritis with painful motion, slight swelling, and stiffness that is productive of noncompensable limitation of motion that more nearly approximates a 10 percent rating under Diagnostic Code 5010-5003. Based on the above evidence, the Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5257 for the left knee is not warranted but that a separate 10 percent rating for arthritis with painful, but noncompensable limitation of motion under Diagnostic Code 5010-5003 is warranted. For the entire period on appeal, the Veteran's left knee disability has been manifested by difficulty ascending and descending stairs, grinding and popping in his knee, locking in his knee, and the regular use of a knee brace, more nearly approximating slight instability under Diagnostic Code 5257 as well as by X-ray findings of arthritis with painful motion, slight swelling, and stiffness that is productive of noncompensable limitation of motion that more nearly approximates a 10 percent rating under Diagnostic Code 5010-5003. Assignment of staged ratings has been considered, but found not to be applicable in this case. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the right or left knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's right and left knee disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's right and left knee disabilities have been manifested by instability, arthritis, and limitation of motion, including due to pain and swelling. The schedular rating criteria specifically provides ratings for instability (Diagnostic Code 5257); such noncompensable limitation of motion due to painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59); and contemplate ratings based on limitation of motion (Diagnostic Codes 5260, 5261), including motion limited to orthopedic factors such as pain, weakness, and guarding (38 C.F.R. §§ 4.40, 4.45, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the bilateral knee disabilities to the rating schedule, the degree of disability of each throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the left or right knee disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. At the May 2012 VA examination, the Veteran stated that he currently is employed by a VAMC. Thus, the Board finds that Rice is inapplicable since there is no evidence of record of unemployability due to the Veteran's service-connected right or left knee disabilities, and the Veteran has not asserted TDIU due to service connected knee disabilities. ORDER An evaluation in excess of 20 percent for right knee instability is denied. A separate 10 percent disability rating for right knee degenerative joint disease is granted. An evaluation in excess of 10 percent for left knee instability is denied. A separate 10 percent disability rating for left knee degenerative joint disease is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs