Citation Nr: 1342576 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-09 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for a right knee disability, rated as 20 percent disabling based on limitation of extension. 2. Entitlement to an increased rating for a right knee disability, rated as 20 percent disabling on account of other residuals of degenerative changes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active military service from July 1972 to August 1974 and from July 1976 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In April 2010, the Veteran testified at hearing conducted at the RO before a Decision Review Officer (DRO). In March 2012, the Veteran also testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). Transcripts of the hearings have been associated with the claims file. In June 2012, the Board remanded this matter for additional development. During the pendency of the remand, the Appeals Management Center (AMC) granted a 20 percent rating for the right knee disability classified as degenerative changes and assigned a separate 20 percent evaluation for limitation of extension. (Although the 20 percent rating for degenerative changes appears to have been awarded based on limitation of flexion, the AMC also referred to the Veteran's disability as including "moderate lateral instability.") The Board thus classified this issue to reflect this grant. In July 2013, the Board remanded this matter a second time, primarily to undertake additional development to confirm that the Veteran underwent a total knee arthroplasty (TKA) of the right knee and to ascertain the residuals from the TKA. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Prior to August 16, 2012, the Veteran's right knee disability manifested by arthritis with limited extension is shown to have extension limited to 15 degrees, but not more, even with consideration of pain on motion and repetitive motion. 2. Prior to August 16, 2012, the Veteran's right knee disability classified as other residuals due to degenerative changes, is not shown to have limitation of flexion to 45 degrees, even with consideration of pain on motion and repetitive motion; the knee disability is manifested by no worse than moderate recurrent lateral instability. 3. The evidence confirms that on August 16, 2012, the Veteran underwent a right TKA; the Veteran has not since experienced loss of function that equates to compensable levels of instability, or restricted motion. CONCLUSIONS OF LAW 1. Prior to August 16, 2012, the criteria for a rating in excess of 20 percent for a right knee disability as manifested by limited extension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5003, 5261 (2013). 2. Prior to August 16, 2012, the criteria for a rating in excess of 20 percent for a right knee disability based on other residuals due to degenerative changes, including recurrent lateral instability, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5003, 5257, 5260 (2013). 3. Beginning August 16, 2012, the criteria for a 100 percent rating have been met for a right TKA, with a residual 30 percent rating warranted as of October 1, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in February 2008, the RO notified the Veteran of the evidence needed to substantiate his claim for increased rating for the right knee. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the February 2008 letter. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). The Board also finds that the February 2008 notice letter issued prior to the July 2008 rating satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding her disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records (STRs) have been obtained and associated with the claims file. VA and private medical records have been obtained. The Board has reviewed the evidence in this paperless claims file. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claims on appeal that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. Additionally, in July 2012 and September 2013, the Veteran was afforded VA examinations in connection with this appeal, the reports of which are of record. 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 opinions obtained in this case are sufficient as they are predicated on consideration of the private and VA medical records in the Veteran's claims file, as well as examination findings. They consider the statements of the Veteran, and provide a rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1 , 4.2, 4.10. 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Painful motion of a major joint or groups of minor joints caused by degenerative arthritis, where the arthritis is established by X-ray, is also deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. See 38 C.F.R. §§ 4.40 , 4.59, 4.71a, Diagnostic Code 5003; VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In addition to the limitation of motion diagnostic criteria, the rating schedule also includes ratings for subluxation or lateral instability of the knee. A 10 percent rating applies for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Diagnostic Code 5055 applies to prosthetic replacement of the knee joint. 38 C.F.R. § 4.71a , Diagnostic Code 5055 (2013). A total rating (100 percent) for the year following the implantation of the prosthesis and a minimum 30 percent rating thereafter is automatically awarded. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion the disability is to be rated by analogy to diagnostic codes 5256, 5261, or 5262. The 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of a 1-month total rating assigned under § 4.30 following hospital discharge. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September, 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of history, service connection was granted for the right knee disorder classified at the time as chondromalacia patella with degenerative changes, status post arthroscopic surgery for anterior cruciate ligament (ACL) and lateral meniscus tears, with an initial 10 percent rating assigned. Subsequently, a 20 percent rating was granted by a September 2003 rating for degenerative changes of the right knee status post arthroscopy. The disability was evaluated under 38 C.F.R. § 4.71a Diagnostic Codes 5010-5257 in these earlier ratings. The Veteran filed his claim on appeal on February 8, 2008. Presently his right knee disorder is evaluated as 20 percent disabling for "degenerative changes" under Diagnostic Codes 5010-5260, and a separate 20 percent rating is in effect for limitation of extension under Diagnostic Codes 5010-5261, pursuant to a February 2013 DRO decision, which assigned the separate rating for limited extension effective February 8, 2008, the date of the increased rating claim. This decision also essentially restored the 20 percent rating for the degenerative changes to the right knee effective February 8, 2008, as this had been reduced to 10 percent disabling as of this date in the July 2008 rating on appeal. The record reflects that on August 16, 2012, the Veteran underwent a total right knee replacement. The intended effect of such surgery was to ameliorate some difficulties relating to the right knee disability, such as pain due to arthritis. In this regard, under the schedule of ratings for the musculoskeletal system, 38 C.F.R. § 4.71a , Diagnostic Code 5055 (knee replacement) is ordinarily intended to replace ratings previously assigned under Diagnostic Code 5010-5260 for the Veteran's right knee disability following replacement. The RO has thus far failed to consider evaluating this disability under the appropriate criteria for knee replacement. Thus, the Board shall adjudicate this claim using the applicable criteria for separate periods under Diagnostic Code 5055 as of August 16, 2012, and other appropriate Diagnostic Codes for the right knee disability prior to this August 16, 2012 TKA surgery. A. Increased Rating prior to August 16, 2012 TKA Evidence pertinent to this matter includes findings of severe tricompartmental osteoarthric change shown in an X-ray from February 2005, with this finding confirmed in subsequent X-rays. He was noted to be taking over-the-counter aspirin and Advil for his knees in February 2008. A March 2008 VA examination of the right knee revealed complaints of occasional weakness, stiffness, giving way, lack of endurance, fatigability and dislocation. He described constant aching and sharp pain of an 8/10 intensity traveling to the lower leg. It was elicited by physical activity. It was relieved by rest and over-the-counter medications, Aleve. At the time of pain, he was able to function without medication. On examination his gait and posture were normal and leg lengths were equal at 91 centimeters. He had no signs of abnormal weight bearing. There were no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding. He also had no locking pain, genu recurvatum or crepitus. Range of motion was 0-140 degrees with pain at 140 degrees. Additional limitation was shown after repetitive movement with pain the major functional impact. There was no additional limitation by weakness, fatigue or incoordination. All ligament and stability tests were normal. Reflexes were 2+ and sensory was within normal limits. The diagnosis was right knee degenerative changes status post arthroscopy. The effects on daily activity were mild. Records from 2009 document worsening right knee pain, with a March 2009 record showing an approximately 15-year history of right knee pain, described as sharp, constant and increasing with activity. Examination revealed no tenderness or swelling and he had painless arc of motion. He was assessed with pain in the joint of the lower leg and received injections. The orthopedic history accompanying this revealed he denied time off from work. On recheck in May 2009 and August 2009 his physical examination findings of the right knee revealed no tenderness or swelling, although a genu valgum deformity was noted. Range of motion was painless. The August 2009 record did disclose subjective complaints of the knee worsening and he indicated injections did not help. An October 2009 VA examination of the knee likewise revealed complaints of weakness, stiffness, giving way, and lack of endurance, along with complaints of locking and pain. He reported flare-ups up to 7 times a week lasting 24 hours with the worst pain at a 10/10 level. These were precipitated by activity and relieved by rest. He reported difficulty standing or walking with flare-ups. There was no current treatment for this condition, although he indicated that TKA had been recommended. On examination, he walked with a limping gait, but had normal tandem gait and posture. His leg length had a centimeter discrepancy, measuring 92 centimeters on the right and 93 centimeters on the left. There was no evidence of abnormal weight bearing or breakdown. He used no assistive devices for ambulation. The right knee was tender and had crepitus but otherwise was without significant findings of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding, malalignment, drainage, subluxation, genu recurvatum, locking or ankylosis. His range of motion was 0-120 degrees with pain at 120 degrees with no additional limitation on repetitive motion. His joint function was noted to be additionally limited after repetitive use with pain being the major impact. Ligament stability tests were all normal. He had a scar of the knee from 0.5 centimeters by 0.2 centimeters, which was without pain or skin breakdown. This was a superficial scar without underlying tissue damage. There was no inflammation, edema or keloid. The scar was not disfiguring and did not limit motion or function. The diagnosis was right knee degenerative changes, status post arthroscopy with residual scars and decreased mobility. This was a result of progression over time. The subjective factors included weakness, stiffness, swelling, giving way, lack of endurance, locking and pain. Objective factors were residual scars, tenderness, crepitus and decreased range of motion. This was described as resulting in moderate effects on his occupation and minimal on his activities of daily living. An October 2009 addendum to this examination clarified that the findings for the scars were for the right knee rather than the left knee (as the examination had erroneously reported). The Veteran's April 2010 DRO hearing testimony described problems with his knee going out on him, with daily instability and locking. He indicated the knee would give out spontaneously and he would have to catch himself several times a day. He described the leg as turning outward and that the knee was also constantly swollen. Regarding employment he was working as a city bus driver and said the job aggravated his knee but he did not take any time off work for it. He indicated that a TKA was recommended but not right away, given his young age. He acknowledged not using braces for his knees, but indicated that this was because his legs were too large to use one comfortably. Private orthopedic records revealed that in February 2011, his private orthopedist, Dr. P.R., gave an opinion that given his examination and X-ray findings, he was felt to be a candidate for right knee TKA. Plans to schedule this surgery were made. Findings from the orthopedic evaluation by this medical provider also dated in February 2011 disclosed that the Veteran reported being unable to extend his right knee for quite some time. He reported buckling, catching and locking. He reported having been active in the military and champion racquetball player, but now could only walk a couple miles a day. He worked as a bus driver. Examination revealed he had difficulty standing from a seated position. He limped and had 2+ effusion of the right knee. He was tender to palpation over the lateral joint line and to a lesser degree over the medial joint line. He had a positive valgus deformity and evidence of posterior sag on the right knee as well as some infrapatellar entrapment. X-rays showed significant arthritis of the right knee, primarily of patellofemoral and lateral compartments with a lateral shift and significant osteophyte formation. The impression was moderate to severe right knee degenerative arthritis. TKA was recommended particularly given the lateral shift of the tibia and the X-ray findings and significant pain. At the Veteran's March 2012 Board hearing, he aired complaints about the October 2009 VA examination, which the Veteran contended failed to provide an adequate examination of the right knee. He also reported right knee symptoms of constant pain that increased with motion and awakened him at night. He took pain medication and also complained of sleepiness which he attributed to the pain keeping him up at night. He felt this had occupational impacts on his work as a bus driver. He also reported the knee would give way easily when walking even with a cane and that this happened about 3-4 times a week. The knee sometimes gave away when he was attempting to get up from a sitting position. He indicated that he could no longer run or play racquetball. He felt the knee was getting worse. He reported it was currently swollen. He did not miss work due to the knee however, attributing the lost sleep as its major occupational impact. The report of a July 2012 VA right knee examination revealed the Veteran reported that he currently used a cane for all ambulation, had daily aching knee pain and was unable to walk more than 2-3 blocks or stand for more than 10-15 minutes with a cane. The knee gave out 3-4 times a week. He used Naproxen daily. He was noted to be evaluated for a TKA. On examination he was unable to fully extend, with extension ending at 15 degrees and pain at that level. His flexion was 85 degrees with pain at 60 degrees. His range of motion after 3 repetitions revealed flexion was down to 75 degrees, with extension unchanged at 15 degrees. In addition to this motion loss, this repetitive use testing resulted in weakened movement, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing and weight bearing. He was tender to palpation for the joint line and soft tissues of the right knee. He had diminished strength of 3/5 on flexion and extension. Joint stability tests were normal with the exception that testing for medial lateral instability was abnormal (applying varus-valgus pressure) with 2+ (5-10 millimeters). There has been no history of recurrent patellar subluxation or dislocation and no other additional conditions like shin splints, stress fractures or other tibial fibula impairment. He did have a history of meniscal (semilunar) condition, with history of mensical tear with frequent episodes of joint pain and effusion. He used an assistive device, that of a cane constantly. His function was not so diminished that an amputation would equally serve him. X-rays confirmed degenerative or traumatic arthritis, but not of patellar subluxation. He had a scar that was not tender, not painful, nor unstable. It also did not measure greater than 39 square centimeters. It was a 4-centimeter linear nontender scar of the right knee. Functional impacts of his knee condition were that it impacted his ability to work as a bus driver, as he had knee pain braking and difficulty getting in and out of the bus. Based on a review of the evidence, the Board finds that a rating in excess of 20 percent disabling is not warranted for the Veteran's limitation of right knee extension prior to August 16, 2012. His motion on the July 2012 VA examination showed findings of his extension limited to 15 degrees, which was unchanged on repetitive motion, with pain at this extreme of motion. None of the other VA examinations or medical treatment records suggested a more severe restriction of extension. In fact, the other evidence discussed above reflects that the extension fell within noncompensable limits prior to the July 2012 VA examination. Thus the Board finds that the evidence fails to show an extension limited to 20 or more degrees, and a rating in excess of 20 percent disabling is not shown for the limited extension. Even with consideration of pain and effects following repetitive use, there has been no indication that his disability is tantamount to loss of extension beyond 15 degrees. Regarding the 20 percent evaluation currently in effect for other residuals due to degenerative changes of the right knee, the Board notes that this had previously been evaluated to include consideration under Diagnostic Code 5257 in adjudications prior to the July 2008 rating on appeal. The evaluation was changed to Diagnostic Code 5010-5060, which contemplates evaluation of limited flexion. However the Board notes that at no point during this appeal does the flexion meet the criteria for a compensable rating, even when considering pain on motion and functional limitations due to repetitive use. Of note, the most severe restrictions of flexion shown in the July 2012 VA examination, with a flexion of 85 degrees with pain at 60 degrees and further limited to 75 degrees with repetitions. These findings still fall outside the criteria for a compensable rating shown to be 45 degrees flexion under Diagnostic Code 5260. Diagnostic Code 5257 contemplates recurrent subluxation or lateral instability, and the evidence does reflect that the Veteran's knee warrants a higher rating. This includes not only the Veteran's lay contentions of his right knee giving way, and the findings from the July 2012 VA examination of abnormal medial lateral instability on ligament testing. Other evidence suggests instability, including the findings in the February 2011 private orthopedic evaluation of a lateral shift of the tibia. However, while the 20 percent rating for other residuals due to degenerative changes of the right knee is shown to be based on moderate recurrent lateral instability (rather than limited flexion), the evidence does not reflect that an increase is warranted on the basis of severe recurrent lateral instability. While the Veteran has reported frequent episodes of giving way of the right knee, generally the tests for ligament stability are shown to be normal in the VA examinations from March 2008 and October 2009. Even the July 2012 VA examination showed mostly normal findings on ligament testing aside of the medial lateral abnormality. Thus, the evidence does not suggest that he has severe recurrent lateral instability and a rating in excess of 20 percent is not warranted under Diagnostic Code 5257. There is also no evidence suggesting that prior to the August 2012 TKA surgery the Veteran had ankylosis of the knee or impairment of the tibia and fibula with marked knee or ankle disability or nonunion with loose motion requiring a brace. The Board finds that prior to the August 16, 2012 TKA, the 20 percent rating in effect for arthritis with limited motion is most appropriately assigned for the Veteran's extension as limited to 15 degrees. The separate 20 percent rating for an impairment of other residuals due to degenerative changes is most appropriately assigned for a disability of instability, as opposed to limited flexion which consistently has been noncompensable. The Board also notes that the Veteran's right knee scar has been evaluated and noted to have been superficial, stable, nontender and measuring less than 6 square inches on the March 2008, October 2009 and July 2012 VA examinations. The scar would not warrant a separate compensable rating under the applicable criteria addressing scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (in effect prior to and as of October 23, 2008). In conclusion, the evidence does not reflect that a rating in excess of 20 percent is warranted for the Veteran's arthritis with limited extension and a separate rating in excess of 20 percent is not warranted for other residuals due to degenerative changes prior to August 16, 2012 TKA. 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 prior to August 16, 2012, the Veteran's right knee disorder is so exceptional or unusual as to warrant consideration of assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). 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 symptoms of his disability, including pain, limited motion and other symptoms, have been contemplated by the schedular criteria. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. For all the foregoing reasons, the Board finds that the claims for higher ratings for service-connected right knee must be denied prior to August 16, 2012. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Rating as of August 16, 2012 TKA The evidence indicates that the Veteran underwent a TKA on August 16, 2012. While the private report documenting such surgery says that this surgery was to the left knee, the Veteran states that this was in error, and that the surgery actually was for the right knee. The bulk of the medical evidence confirms that this surgery was in fact conducted on the right knee. Records leading up to the surgery include a February 2011 private record from a Dr. P.R. who indicated that the right knee was the worse knee and in need of a TKA, but that the left knee only needed conservative treatment. Dr. P.R. conducted the TKA surgery in August 2012. The surgical records revealed that the Veteran was discharged from the hospital on August 20, 2012. The report of a September 2013 VA examination, with addendum from October 2013 confirming review of the electronic record, shows that the TKA was in place in the right knee and noted that the surgeon who had performed the August 2012 surgery corrected the operative report from left knee to right knee TKA in an August 21, 2012, letter. The examination revealed that since this right TKA, the Veteran's pain was down to 3/10 intensity and he could walk 2-3 miles. Examination revealed his motion was 0-95 degrees without painful motion and no additional limitation of motion after repetitive use testing. He also had full muscle strength of 5/5 on flexion and extension, and joint stability tests were all normal. He used no assistive devices since the surgery and had no flare-ups that impacted function of the knee or lower leg, although he did have less movement than normal, excess fatigability and disturbance of locomotion after repetitive use. His scar was noted to neither be painful nor unstable and was not greater than 39 square centimeters. The Veteran's representative in a November 2013 informal hearing presentation has specifically requested that the Board award the Veteran a temporary 100 percent for the year following the August 16, 2012 TKA surgery and subsequently a 30 percent rating as of October 1, 2013 under 38 C.F.R. § 3.71a Diagnostic Code 5055. (A Veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993).) In this case for the period from August 16, 2012, the Veteran's representative has indicated that following a period of total rating as directed under Diagnostic Code 5055, that a 30 percent rating is warranted for the TKA residuals. In this instance, the Board is granting the precise relief requested by the Veteran for the period beginning August 16, 2012, which was the date of the right knee TKA surgery. Beginning on this date, the Veteran is shown to be entitled to a 100 percent disability rating for a full year following a one-month period after his discharge from the hospital, shown to have taken place on August 20, 2012. Diagnostic Code 5055, note (1). Thus the one-year period (following the one month period after hospitalization) commences on October 1, 2012, and ends on October 1, 2013. Thereafter the 30 percent minimum rating should be assigned beginning on October 1, 2013. See 38 C.F.R. § 3.71a Diagnostic Code 5055. When examined by VA in September 2013, there was no indication that the Veteran experienced any symptoms that would warrant a rating greater than 30 percent. His pain was decreased to a 3/10 level and he could walk 2 to 3 miles. He had motion from 0 to 95 degrees even with repetitive testing, and the examiner noted that there was no objective indication of painful motion. He had no flare-ups and no instability. His limited function was described as being an inability to run. In short, there is no indication that ratings based on limitation of motion or instability would be assignable. Additionally, the 30 percent rating awarded herein is the very rating sought by the Veteran through his representative. Therefore, award of a higher rating is not warranted. ORDER Prior to August 16, 2012, a rating in excess of 20 percent for the Veteran's right knee disability manifested by limitation of extension is denied. Prior to August 16, 2012, a rating in excess of 20 percent for the Veteran's right knee disability manifested as other residuals due to degenerative changes with moderate instability is denied. From August 16, 2012 to October 1, 2013, a 100 percent rating is granted for right knee TKA, with a 30 percent rating granted for right knee TKA residuals as of October 1, 2013, subject to the laws and regulations governing the award of monetary benefits. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs