Citation Nr: 1513560 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 11-31 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for left knee osteoarthritis prior to August 4, 2014. 2. Entitlement to an initial evaluation in excess of 30 percent for left knee osteoarthritis on or after August 4, 2014. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee osteoarthritis prior to August 4, 2014. 4. Entitlement to an initial evaluation in excess of 30 percent for right knee osteoarthritis on or after August 4, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to May 2009. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that rating decision, the RO granted service connection for left and right knee osteoarthritis (claimed as bilateral knee surgery) and assigned separate 10 percent ratings, effective from June 1, 2009. The Veteran appealed the assigned ratings. The Veteran relocated during the course of his appeal, and jurisdiction was transferred to the RO in Nashville, Tennessee. In March 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2014, the Board remanded the case to the Appeals Management Center (AMC) for further development. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a September 2014 rating decision, the AMC increased the Veteran's disability evaluations for his left and right knee osteoarthritis, based on limitation of extension, to 30 percent, effective from August 4, 2014. The AMC also granted a separate 10 percent evaluation for instability of the left knee effective from August 4, 2014. However, applicable law mandates that, when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals a copy of the hearing transcript and VA treatment notes. The remaining documents are duplicative of the evidence in the VBMS file. FINDINGS OF FACT 1. For the period prior to August 4, 2014, the Veteran's left knee osteoarthritis was not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 15 degrees; recurrent subluxation or lateral instability; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 2. For the period on or after August 4, 2014, the Veteran's left knee osteoarthritis was not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 30 degrees; recurrent subluxation; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 3. For the period prior to August 4, 2014, the Veteran's right knee osteoarthritis was not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 15 degrees; recurrent subluxation or lateral instability; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 4. For the period on or after August 4, 2014, the Veteran's left knee osteoarthritis was not productive of actual or functional flexion limited to 45 degrees; actual or functional extension limited to 30 degrees; recurrent subluxation or lateral instability; ankylosis; dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint; impairment of the tibia and fibula; or genu recurvatum. 5. The Veteran had underwent a meniscectomy on his right knee in 2000 and on his left knee in 2006. He has residual signs and symptoms due to the meniscectomy, to include effusion. CONCLUSIONS OF LAW 1. For the period prior to August 4, 2014, the criteria for an initial evaluation in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2014). 2. On or after August 4, 2014, the criteria for an initial evaluation in excess of 30 percent for left knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2014). 3. For the period prior to August 4, 2014, the criteria for an initial evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2014). 4. On or after August 4, 2014, the criteria for an initial evaluation in excess of 30 percent for right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2014). 5. The criteria for an initial 10 percent evaluation for the symptomatic removal of semilunar cartilage in the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5259 (2014). 6. The criteria for an initial 10 percent evaluation for the symptomatic removal of semilunar cartilage in the left knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5259 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial evaluations assigned following the grant of service connection for his bilateral knee disabilities. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied with respect to the issues of entitlement to higher initial evaluations for the service-connected bilateral knee disabilities. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment notes, have been associated with the claims file and were reviewed by both the RO and the Board in connection with the claims. In the April 2014 remand, the Board directed the RO/AMC to request that the Veteran provide the names and addresses of any and all health care providers who provided treatment for his bilateral knee disabilities. In May 2014, the AMC requested that the Veteran complete an authorization so that it could obtain records from any identified private providers who treated him for his bilateral knee disabilities. The Veteran did not respond to this request. In addition, in the April 2014 remand, the Board directed the RO/AMC to obtain any outstanding VA medical records dated from June 2009 to the present. In accordance with the remand directive, the AMC obtained VA treatment notes dated from June 2014 to September 2014. The Veteran has not identified any other outstanding records that are pertinent to the issues currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA joints examination in February 2009 and a VA knee examination in August 2014. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, the examinations were based upon consideration of the Veteran's pertinent medical history, as well as his lay assertions and current complaints, and the examiners described the knee disabilities in detail sufficient to allow the Board to make a fully informed determination. Id. Moreover, the VA examination report was fully responsive to and addressed the April 2014 remand directives, and the examiner addressed all pertinent rating criteria. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral knee disabilities since he was last examined. 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). With regard to the April 2014 remand, the Board finds that AMC substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remand, the RO sent the Veteran medical authorization forms to secure potential private medical evidence, obtained outstanding VA treatment notes and associated them with the electronic claims file, and provided the Veteran with a sufficient VA examination for his bilateral knee disabilities. As such, the AMC has substantially complied with the Board's instructions. With regard to the March 2014 hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfills two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claims on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012). At the hearing, the Veterans Law Judge, the Veteran, and the representative outlined the increased rating issues on appeal and engaged in a discussion as to substantiation of those claims. The Veteran's specific symptomatology was discussed in detail by the parties at that hearing. In fact, the Veteran's representative spent a considerable amount of time identifying the relevant evidence and interviewing the Veteran. The Veterans Law Judge also clarified whether any additional relevant evidence was available which could substantiate these claims. The actions of the Veterans Law Judge supplemented the duty to notify and assist and complied with any related duties owed during a hearing. Overall, the hearing was legally sufficient, and there has been no allegation to the contrary. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims, and he did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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. 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 a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, the Veteran's service-connected bilateral knee disabilities on appeal are currently assigned 10 percent evaluations prior to August 4, 2014, and 30 percent evaluations since August 4, 2014, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. In addition, Diagnostic Code 5003 states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which, in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to increased ratings for his bilateral knee disabilities. Initially, the Board finds that the Veteran is not entitled to a higher initial evaluation under Diagnostic Code 5261 for limitation of extension. Prior to August 4, 2014, the record does not show that extension was limited to 15 degrees to warrant a higher disability rating under these criteria. In fact, during the February 2009 VA examination, the Veteran demonstrated left and right knee extension to 0 degrees with objective evidence of pain on motion. In addition, on or after August 4, 2014, the record does not show that that extension is limited to 30 degrees to warrant a higher disability rating under these criteria. During the August 2014 VA examination, the Veteran demonstrated left knee extension to 20 degrees with objective evidence of painful motion beginning at 20 degrees. He demonstrated right knee extension to 25 degrees with objective evidence of painful motion beginning at 25 degrees. As such, the current ratings assigned contemplate the Veteran's symptomatology of painful motion, and an increased evaluation under Diagnostic Code 5261 is not warranted. The Board also finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Code 5260 for limitation of flexion. Prior to August 4, 2014, the record does not show that flexion was limited to 45 degrees to warrant a higher or separate evaluation at any point during the appeal period. In fact, during the February 2009 VA examination, the Veteran demonstrated left and right knee flexion to 130 degrees with objective evidence of pain on motion. In addition, during the August 2014 VA examination, the Veteran demonstrated left knee flexion to 95 degrees with objective evidence of painful motion beginning at 95 degrees. He also had right knee flexion to 90 degrees with objective evidence of painful motion beginning at 90 degrees. Thus, the Veteran does not meet the criteria for a compensable evaluation under Diagnostic Code 5260. In an effort to afford the Veteran the highest possible rating, the Board has also determined whether any other rating criteria are applicable. In considering the criteria of Diagnostic Code 5257, the Board notes that the Veteran was assigned a separate 10 percent evaluation for left knee instability, effective from August 4, 2014, in a September 2014 rating decision. He has not appealed that rating. In addition, there is no evidence of left knee instability prior to August 4, 2014, and there is no evidence of right knee instability during either period on appeal. In fact, the February 2009 VA examiner indicated that there was no instability. The August 2014 VA examiner also noted that there was no evidence or history of any recurrent patellar subluxation or dislocation. Thus, a higher evaluation is not warranted under this diagnostic code. Nevertheless, the Board does find that a separate 10 percent evaluation is warranted for both knees under Diagnostic Code 5259 for the symptomatic removal of semilunar cartilage. In this regard, the August 2014 VA examiner indicated that the Veteran had a meniscectomy on both knees. He underwent such surgery in 2000 for his right knee and in 2006 for his left knee. The examiner also stated that the Veteran had residual signs and symptoms due to the meniscectomy, to include pain and effusion. As effusion is not contemplated under Diagnostic Codes 5257 and 5261, the Board finds that a separate evaluation may be assigned. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered whether a higher or separate evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis of either knee, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), 5258 (dislocation of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). While the Veteran testified that his knees locked in an extended position during the March 2014 hearing, his testimony is contradicted by the VA examiners' findings in February 2009 and August 2014. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran's left and right knees are not fixated or immobile even when painful motion is considered. Moreover, despite the Veteran sustaining meniscal tears, the evidence shows that he underwent a meniscectomy on both knees for which he has been assigned a separate evaluation. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5258, 5262, and 5263. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran's bilateral disabilities are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 and 30 percent evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's left and right knees is already contemplated in the assigned evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned. Indeed, the February 2009 VA examiner noted that the Veteran's knees did not have any diminution with repetitive testing and specifically stated that there were no DeLuca criteria. The August 2014 VA examiner also indicated that the Veteran did not have any additional limitation in range of motion of the knee and lower leg following repetitive-use testing. Even considering painful motion, he still did not have a decrease in range of motion. Accordingly, the Board concludes that initial evaluations in excess of 10 percent prior to August 4, 2014, are not warranted for the Veteran's left and right knee disabilities. Similarly, the Board finds that initial evaluations in excess of 30 percent on or after August 4, 2014, are not warranted for the Veteran's left and right knee disabilities. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left and right disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected left and right knee disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, the Veteran's chief complaints, including pain and functional loss of his left and right knees are contemplated in the rating criteria. The Board notes that, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case. Thus, it cannot be said that the available schedular evaluations for this disability are inadequate. There are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations, as discussed above. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left and right knee disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 10 percent for left knee osteoarthritis prior to August 4, 2014, is denied. An initial evaluation in excess of 30 percent for left knee osteoarthritis on or after August 4, 2014, is denied. An initial evaluation in excess of 10 percent for right knee osteoarthritis prior to August 4, 2014, is denied. An initial evaluation in excess of 30 percent for right knee osteoarthritis on or after August 4, 2014, is denied. An initial 10 percent evaluation for symptomatic removal of semilunar cartilage in the right knee is granted. An initial 10 percent evaluation for symptomatic removal of semilunar cartilage in the left knee is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs