Citation Nr: 1417620 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 09-35 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to restoration of a 20 percent evaluation for residuals of a right knee injury with traumatic arthritis, post-operative, effective August 11, 2008, to include the issue of whether the reduction to a 10 percent evaluation was proper. 2. Entitlement to an increased rating for residuals of a right knee injury with traumatic arthritis, post-operative, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for anteromedial instability of the right knee, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for limitation of extension of the right knee, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to May 1975. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran an increased disability rating in excess of 20 percent for his residuals of a right knee injury with traumatic arthritis, post-operative. The Veteran filed a Notice of Disagreement (NOD) in November 2008. The RO issued a Statement of the Case (SOC) in August 2009. In September 2009, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal. During the course of this appeal, the RO issued another rating decision in October 2009, which decreased the disability rating for the residuals of a right knee injury with traumatic arthritis, post-operative, to 10 percent, retroactively effective from August 11, 2008, the date of the Veteran's increased rating claim. In that same rating decision, the RO also granted a separate 10 percent rating for anteromedial instability of the right knee, retroactively effective from August 11, 2009. The Veteran continued to appeal. The RO issued another rating decision in September 2012, which granted a separate 40 percent disability rating for limitation of extension of the right knee. The 40 percent rating was made retroactively effective from August 30, 2011. The Veteran continued to appeal, requesting even higher disability ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The RO certified this appeal to the Board in January 2010. Additional medical evidence was then added to the record and the appeal was not readjudicated by the Agency of Original Jurisdiction (AOJ). However, the Veteran's representative waived the Veteran's right to have the RO initially consider this evidence in a statement dated in March 2014. 38 C.F.R. §§ 20.800, 20.1304 (2013). The Veteran's paperless claims files were also reviewed and considered in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. At the time of the reduction, the 20 percent disability rating for the residuals of a right knee injury with traumatic arthritis, post-operative, had been in effect for more than twenty years and was not the result of fraud. 2. Prior to November 7, 2011, the Veteran's residuals of a right knee injury with traumatic arthritis, post-operative, was manifested by, at worst, flexion limited to 120 degrees, even with consideration of his pain. 3. Since November 7, 2011, the Veteran's residuals of a right knee injury with traumatic arthritis, post-operative, was manifested by flexion limited to 15 degrees. 4. Throughout the appeal, the Veteran's anteromedial instability of the right knee has been manifested by recurrent lateral instability that is productive of moderate impairment of the knee. 5. Prior to August 30, 2011, the Veteran's right knee was not manifested by limitation of extension sufficient to warrant a separate, compensable disability rating. 6. Since August 30, 2011, the Veteran's limitation of extension of the right knee has been manifested by, at worst, extension limited to 40 degrees, even with consideration of his pain. CONCLUSIONS OF LAW 1. The criteria for restoration of a separate and protected 20 percent disability evaluation for the residuals of a right knee injury with traumatic arthritis, post-operative, have been met. 38 C.F.R. § 3.951(b) (2013). 2. Prior to November 7, 2011, the criteria for a disability rating in excess of 20 percent for residuals of a right knee injury with traumatic arthritis, post-operative, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.68, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260 (2013). 3. Since November 7, 2011, the criteria for an increased disability rating of 30 percent for residuals of a right knee injury with traumatic arthritis, post-operative, are met and subject to the amputation rule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.68, 4.71a, DCs 5003, 5010, 5260 (2013). 4. The criteria for a disability rating of 20 percent for anteromedial instability of the right knee are met and are subject to the amputation rule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.68, 4.71a, DCs 5010, 5257 (2013). 5. The criteria for a disability rating in excess of 40 percent for limitation of extension of the right knee, since August 30, 2011, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist Regarding the restoration claim, the essential facts of this case are not in dispute. Rather, the case rests on the interpretation and application of the relevant law. The Veterans Claims Assistance Act of 2000 (VCAA) does not affect matters on appeal when the issue is limited to statutory interpretation and not the facts. See Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Regarding the increased rating claims, under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to and following the initial adjudication of the increased rating claims, letters dated in August 2008 and December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that: 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability; 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment; and, 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by the August 2008 and December 2008 notice letters to the Veteran regarding his increased rating claims. Although the December 2008 letter was not sent prior to the initial adjudication of the Veteran's claims in the October 2008 rating decision, this was not prejudicial to him, since the claims were readjudicated in the August 2009 SOC, October 2009 rating decision, October 2009 Supplemental SOC (SSOC), and September 2012 rating decision. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his right knee disability. 38 C.F.R. § 4.2 (2013). The evidence of record does not suggest that the Veteran's right knee disability has worsened since his last VA examination in November 2011. Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this appeal insofar as assessing the severity of the disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Restoration Claim As part of his increased rating appeal, the Veteran seeks restoration of a 20 percent evaluation for the service-connected residuals of a right knee injury with traumatic arthritis, post-operative, effective August 11, 2008, to include the issue of whether the reduction to a 10 percent evaluation was proper. By way of history, in a June 1975 rating decision, the RO granted service connection for the Veteran's right knee disability and awarded a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5259. The disability rating was made retroactively effective from May 10, 1975, the day following the Veteran's discharge from the military. The Veteran did not appeal this decision. In a June 1985 rating decision, the RO increased the disability rating for the right knee disability to 20 percent under 38 C.F.R. § 4.71a, DCs 5259-5258. The 20 percent disability rating was made retroactively effective from February 8, 1985, the day following the Veteran's discharge from the military. The Veteran did not appeal this decision. In August 2008, the Veteran filed an increased rating claim for his service-connected right knee disability. In a letter dated in August 2008, the Veteran was informed of the regulation changes, and that his disability would now be rated under DC 5260. 38 C.F.R. § 4.71a. In an October 2008 rating decision, the RO denied an increased disability rating in excess of 20 percent for the residuals of a right knee injury with traumatic arthritis, post-operative. The Veteran then perfected a timely appeal. At the time of the October 2008 rating decision, the Veteran's total combined disability rating was 20 percent. The RO then issued another rating decision in October 2009, which decreased the disability rating for the residuals of a right knee injury with traumatic arthritis, post-operative, to 10 percent, retroactively effective from August 11, 2008, the date of the Veteran's increased rating claim. In that same rating decision, the RO also granted a separate 10 percent rating for anteromedial instability of the right knee, retroactively effective from August 11, 2009. Thus, the Veteran's total combined rating did not change with this rating decision; it remained at 20 percent. The Veteran continued to appeal for higher disability ratings for his service-connected right knee disability. Generally, when a reduction in the evaluation of a service-connected disability or employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and be furnished detailed reasons therefore. 38 C.F.R. § 3.105(e). In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. If no additional evidence is received within the prescribed time period to contest the reduction, the proposed action may be accomplished. The effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e). Here, the Board notes that the Veteran was not given due process notice of the proposed reduction in the rating, or provided an opportunity to submit additional evidence to contest the reduction and request a pre-determination hearing. However, the October 2009 rating decision did not change the Veteran's total combined disability rating of 20 percent, and thus, it did not result in a reduction of compensation payments currently being made. See VAOPGCPREC 71-91. Accordingly, the Veteran was "not subjected to economic hardship during the course of the appeal." Id. For these reasons, 38 C.F.R. § 3.105(e) is not applicable to this claim. In cases where a veteran's disability rating is reduced, however, the Board must still determine whether the reduction of the veteran's disability rating was proper. Here, the effective date of the prior 20 percent rating was February 8, 1985. The effective date of the reduction to 10 percent was August 11, 2008. Thus, the 20 percent rating was in effect for more than twenty years. A disability that has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 38 C.F.R. § 3.951(b). In the present case, the 20 percent rating was in effect for more than 20 years at the time of the October 2009 rating decision that reduced the disability rating to 10 percent. There is no evidence of any kind that would indicate, suggest, or insinuate that the disability evaluation initially assigned by the RO in 1985 was or is the product of fraud. As the 20 percent disability rating has been in effect for more than 20 years and there is no showing that the original rating was based upon fraud, the evaluation itself is protected pursuant to the criteria found at 38 C.F.R. § 3.951(b). Accordingly, the Veteran is entitled to a restoration of a separate 20 percent, protected disability evaluation pursuant to 38 C.F.R. § 4.71a, DCs 5010-5260, for his residuals of a right knee injury with traumatic arthritis, post-operative. III. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed rating decision of June 1975 granted service connection for the Veteran's right knee disability. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 20 percent evaluation for his residuals of a right knee injury with traumatic arthritis, post-operative, under 38 C.F.R. § 4.71a, DCs 5010-5260. The Veteran is also currently in receipt of a 10 percent evaluation for his anteromedial instability of the right knee under 38 C.F.R. § 4.71a, DCs 5010-5257, effective August 11, 2009. The Veteran is also currently in receipt of a 40 percent evaluation for his limitation of extension of the right knee under 38 C.F.R. § 4.71a, DC 5261, effective August 30, 2011. He seeks increased disability ratings. Under DC 5010, arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings 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 disabilities listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved (here, DCs 5260 and 5261). 38 C.F.R. § 4.71a. Here, the appropriate limitation of motion codes for the knee are DC 5260 and 5261. 38 C.F.R. § 4.71a. Under DC 5260, a 20 percent rating is warranted for flexion of the knee limited to 30 degrees. A 30 percent rating is warranted for flexion of the knee limited to 15 degrees. A 30 percent rating is the maximum schedular rating available under DC 5260. 38 C.F.R. § 4.71a. DC 5261 provides the criteria for limitation of extension of the leg. Under DC 5261, a noncompensable (0 percent) rating is assigned for limitation of extension of the leg to 0 degrees. A 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating is assigned for limitation of extension of the leg to 20 degrees. A 40 percent rating is assigned for limitation of extension of the leg to 30 degrees. A 50 percent rating is assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2013). Additionally, under VAOPGCPREC 23-97, a veteran may be assigned separate ratings for limitation of motion under DC 5260 (limitation of flexion) or 5261 (limitation of extension) and for instability/subluxation under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability. It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Under DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability that is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. A 30 percent rating is warranted for recurrent subluxation or lateral instability that is productive of severe impairment of the knee. A 30 percent rating is the maximum schedular disability rating available under this code. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in VA's Rating Schedule. Thus, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6 (2013). Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board will begin by addressing the 20 percent disability rating in effect for the residuals of a right knee injury with traumatic arthritis, post-operative. Here, the Veteran is already in receipt of the maximum schedular disability rating under DCs 5010-5003. Under DC 5260, a higher disability rating requires evidence of flexion of the right knee limited to 15 degrees to warrant a higher disability rating. 38 C.F.R. § 4.71a. At a July 2008 private independent medical evaluation (IME), the Veteran's flexion of the knee was limited to 135 degrees, even with consideration of his pain. At his September 2008 VA joints examination, the Veteran's flexion of the knee was limited to 126 degrees with pain beginning at 120 degrees. At his November 7, 2011, VA joints examination, the Veteran's flexion of the knee was limited to 15 degrees with no objective evidence of painful motion. The remaining treatment records do not provide contrary evidence. Thus, based on the aforementioned evidence, the Veteran is entitled to a disability rating of 30 percent for his residuals of a right knee injury with traumatic arthritis, post-operative, effective from November 7, 2011, the date of the VA examination that showed sufficient limitation of flexion of the right knee to warrant a higher disability rating. 38 C.F.R. § 4.71a, DC 5260. A 30 percent rating is the maximum schedular rating available under DC 5260, and thus a higher rating is not warranted since November 7, 2011. Additionally, the evidence of record does not establish that the Veteran's right knee flexion was limited to 15 degrees at any time prior to November 7, 2011. Thus, the Veteran is not entitled to a disability rating in excess of 20 percent prior to November 7, 2011. 38 C.F.R. § 4.71a. The Board will now address the 10 percent disability rating in effect for anteromedial instability of the right knee, effective August 11, 2009. In applying the above law to the facts of the case and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a disability rating of 20 percent for his anteromedial instability of the right knee for the entire appeal period, subject to the amputation rule which will be discussed below. Under DC 5257, there is evidence of recurrent subluxation or lateral instability that is productive of moderate impairment of the knee to warrant a higher disability rating of 20 percent since August 11, 2009. 38 C.F.R. § 4.71a. Specifically, at a July 2008 private IME, the Veteran described daily instability of the right knee with walking and working. He reported the use of a right knee brace, but stated that he could only wear it intermittently because of his job. The Veteran reported difficulty with unleveled ground and having to rotate his right leg in order to keep his right knee stable. The physician described the Veteran's instability of the right knee as "chronic" and "severe" with a "fairly significantly unstable right knee." The private physician took X-rays of the right knee at the examination, which showed that the tibia had been worn posteriorly. The physician found this finding to be "consistent with a chronic anterior cruciate ligament deficient knee with anterolateral, as well as anteromedial instability." At his September 2008 VA joints examination, the Veteran had abnormal weight-bearing with an antalgic gait. He did not have "giving way" or locking episodes of the right knee. The VA examiner determined that the Veteran had "mild" instability of the right knee with episodes of dislocation or subluxation occurring twice a year. At his November 2011 VA joints examination, the examiner could not test the Veteran's instability of the right knee. The examiner found that there was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran also did not have X-ray evidence of patellar subluxation. The examiner noted that the Veteran wore a right knee brace. The Veteran's treatment records also document the use of a right knee brace, but do not provide contrary evidence to that described above. In applying the above law to the facts of the case and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a disability rating of 20 percent for his anteromedial instability of the right knee for the entire appeal period. Under DC 5257, there is evidence of recurrent subluxation or lateral instability that is productive of moderate impairment of the knee to warrant a higher disability rating of 20 percent. 38 C.F.R. § 4.71a. The private physician found the Veteran's daily instability to be severe, while the September 2008 VA examiner found the instability to be mild. The November 2011 VA examiner was unable to test the Veteran's instability and did not find subluxation upon examination or X-ray. Thus, in weighing the medical evidence of record, the Board finds that the Veteran's instability is best rated as moderate - somewhere between the "mild" and "severe" descriptions by the physicians. Thus, based on the aforementioned evidence, the Veteran is entitled to an increased disability rating of 20 percent for his anteromedial instability of the right knee. 38 C.F.R. § 4.71a, DC 5257. However, the Veteran is not entitled to a disability rating in excess of 20 percent for his instability of the right knee. Only one of the three physicians who conducted an examination of the Veteran's right knee classified the Veteran's right knee as severe, during the course of the appeal. Additionally, at the private examination, the Veteran reported being able to work without the daily use of his right knee brace, as he used the brace intermittently. This fact, coupled with the September 2008 VA examiner's description of the Veteran's instability as mild, shows that the Veteran's recurrent instability is productive a moderate impairment of the knee, but not severe impairment. Thus, the Veteran is not entitled to a higher 30 percent rating under 38 C.F.R. § 4.71a, DC 5257 for his right knee instability. Additionally, the Veteran is now in receipt of the maximum schedular disability rating of 20 percent under DCs 5010-5003, and thus a higher rating cannot be awarded under these codes. 38 C.F.R. § 4.71a. The Board will now address the 40 percent disability rating in effect for the limitation of extension of the right knee, effective August 30, 2011. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent for his limitation of extension of the right knee since August 30, 2011. Here, under DC 5261, there is no evidence of limitation of extension of the leg to 45 degrees to warrant a higher disability rating since August 30, 2011. 38 C.F.R. § 4.71a, DC 5261. At his November 2011 VA joints examination, the Veteran's extension of the right knee was limited to 40 degrees with no objective evidence of pain. The remaining treatment records do not provide contrary evidence. Thus, based on the aforementioned evidence, the Veteran is not entitled to a disability rating in excess of 40 percent for his limitation of extension of the right knee, since August 30, 2011, as the evidence does not establish that his limitation of extension of the right knee has been limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The Veteran is also not entitled to a compensable disability rating prior to August 30, 2011, for his limitation of extension of the right knee. Prior to August 30, 2011, the Veteran's right knee has not been manifested by sufficient limitation of extension to warrant a separate, compensable disability rating. 38 C.F.R. § 4.71a, DC 5261. At a July 2008 private IME, the Veteran's extension of the right knee was limited to 8 degrees. At his September 2008 VA joints examination, the Veteran's extension of the knee was -110 degrees to 0 degrees with no objective evidence of pain. The remaining treatment records do not provide contrary evidence. Thus, based on the aforementioned evidence, the Veteran's limitation of extension of the right knee has not been limited to 10 degrees or more, to warrant a separate, compensable disability rating of 10 percent, prior to August 30, 2011. 38 C.F.R. § 4.71a, DC 5261. In forming this decision, the Board has considered the Veteran's complaints of pain in the right knee. However, the lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran's disability warrants higher disability ratings. 38 C.F.R. § 4.71a. Specifically, at the July 2008 private IME, the Veteran reported significant, daily pain in his right knee. At the September 2008 VA examination, the Veteran described functional limitations upon standing or walking on the right knee, but denied any flare-ups. The VA examiner found that the Veteran had pain, stiffness, and weakness in his right knee. The Veteran experienced pain upon flexion of the right knee, but not extension of the right knee. He did not have any additional loss of ranges of motion upon repetitive use of the right knee. At the November 2011 VA examination, the Veteran reported flare-ups of right knee, in which he experienced pain and stiffness. Objective evidence of painful motion upon flexion and extension was not noted by the examiner. The Veteran was able to perform repetitive-use testing with three repetitions of the right knee. Following repetitive-use testing, the Veteran's flexion of the right knee was additionally limited by 5 degrees (from 0 to 10 degrees). His extension of the right knee was not additionally limited following the repetitions. The examiner determined that the Veteran did have functional loss and/or functional impairment of the right knee, to include weakened movement, pain on movement, and instability of station. However, given that the Veteran was able to achieve the aforementioned ranges of motion of the right knee on examinations despite the presence of pain, the Board finds that additional compensation for pain is not warranted. Indeed, pain alone does not constitute a functional loss under VA regulations. See Mitchell, 25 Vet. App. at 32. An award of a higher rating cannot be based on speculation of the additional functional loss in terms of degrees during such flare-ups. Thus, the Board finds that the Veteran's painful limitation of motion and additional functional impairment meets the impairment contemplated by the current schedular disability ratings throughout the entire appeal period and does not more nearly approximate functional impairment commensurate with higher disability ratings. Even when considering the Veteran's pain and functional impairment following repetitive motion, the evidence of record does not establish that he has the requisite limitation of motion of the right knee to warrant higher disability ratings. Accordingly, the evidence of record does not support the assignment of higher disability ratings for the right knee disability based on additional functional limitation following repetitive use or flare-ups of the joint. The Board has considered the application of the remaining pertinent DCs under the current version of the regulation in an effort to determine whether higher ratings may be warranted for the Veteran's right knee disability, but finds none are raised by the medical evidence. Specifically, the Veteran is already in receipt of the maximum schedular disability ratings under DCs 5258, 5259, and 5263. 38 C.F.R. § 4.71a. The evidence also does not establish that the Veteran's right knee is ankylosed to warrant a higher disability rating under 38 C.F.R. § 4.71a, DC 5256. Throughout the appeal, the Veteran has displayed ranges of motion, albeit limited, in the right knee, which demonstrates that his right knee is not ankylosed. The September 2008 VA examiner also made a specific finding that the Veteran's right knee was not ankylosed. 38 C.F.R. § 4.71a, DC 5256. Additionally, DC 5262 is inapplicable because the evidence of record does not document that the Veteran has impairment, to include malunion or nonunion, of the tibia and fibula of his right leg. At the September 2008 VA examination, the examiner found that the Veteran did not have any patellar, meniscus, tendon, or bursa abnormalities. This finding was based on X-rays obtained at the examination. The private examiner, following X-rays of the right knee, noted that the Veteran's tibia was worn posteriorly, but no finding of nonunion or malunion of the tibia was made by the examiner. Similarly, impairment of the tibia and fibula of the right leg were not documented in the November 2011 VA examination report and accompanying X-rays. 38 C.F.R. § 4.71a, DC 5262. The Board has also considered whether additional staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period has the service-connected right knee disability more nearly met or nearly approximated the criteria for higher disability ratings than those currently assigned. Accordingly, additional staged ratings are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, the schedular criteria for a disability rating of 30 percent for the residuals of a right knee injury with traumatic arthritis, post-operative, have been met. The schedular criteria for a disability rating of 20 percent for the anteromedial instability of the right knee have been met since August 11, 2009. However, the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the residuals of a right knee injury with traumatic arthritis, post-operative, at any time during the appeal period. The preponderance of the evidence is also against the assignment of a disability rating in excess of 20 percent for the anteromedial instability of the right knee at any time during the appeal period. The preponderance of the evidence is also against the assignment of a disability rating in excess of 40 percent for the limitation of extension of the right knee at any time since August 11, 2011. Thus, the increased rating appeal for the right knee disability is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is a general rule against the "pyramiding" of benefits. See 38 C.F.R. § 4.14 ; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993). However, the Board acknowledges that a veteran is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also notes that, with the effectuation of this decision, the Veteran will have a combined rating of 80 percent for the right knee disabilities. However, the "amputation rule" provides that the combined rating for disabilities of an extremity cannot exceed the rating for amputation at the elective level. 38 C.F.R. § 4.68. In relation to amputations of the lower extremity, a 60 percent disability rating is assigned if there was an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Diagnostic Code 5162. Amputation of a leg with defective stump and thigh amputation recommended or amputation not improvable by prosthesis controlled by natural knee action may also be assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5163 and 5164. A higher rating of over 60 percent requires amputation in the upper third of the thigh. The evidence of record does not indicate that such an amputation has been approximated by the Veteran's functional limitations. Thus, considering the "amputation rule" pursuant to 38 C.F.R. § 4.68 and 38 C.F.R. § 4.71a , Diagnostic Codes 5161, 5162-5164, a 60 percent disability rating would be the maximum assignable disability rating for the Veteran's left knee disability under the applicable rating codes. IV. Extraschedular and TDIU Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2013), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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 a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran'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"). Here, because the schedular ratings for the Veteran's right knee disability fully address his symptoms, which include mainly pain and limitation of motion, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. A comparison between the level of severity and symptomatology of the right knee with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports pain, instability, and limitation of motion that affects his ability to stand for prolonged periods. The regulations address limitation of motion, pain, and instability, and the Veteran's pain upon motion and weakness were considered in assigning him his current disability ratings. However, even with consideration of his pain, his ranges of motion of the right knee were not severe enough to warrant higher disability ratings. Thus, the Veteran's symptoms of pain, instability, and limitation of motion were considered in the regulations. There is no credible evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. In his September 2009 Substantive Appeal, the Veteran stated that he was currently employed. There has been no allegation during the course of the appeal that the Veteran's service-connected right knee disability has resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER Restoration of a separate, 20 percent rating for the residuals of a right knee injury with traumatic arthritis, post-operative, is granted. Entitlement to an increased rating of 30 percent for residuals of a right knee injury with traumatic arthritis, post-operative, effective November 7, 2011, is granted, and subject to the amputation rule. Entitlement to an increased disability rating of 20 percent for anteromedial instability of the right knee is granted, effective August 11, 2008 and subject to the amputation rule. Entitlement to an increased disability rating for limitation of extension of the right knee, currently evaluated as 40 percent disabling, since August 30, 2011, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs