Citation Nr: 1603880 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-03 844 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for service-connected status post arthroscopy of the left knee medial meniscal tear with chondromalacia, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected instability of the left knee (status post arthroscopy of the left knee), currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to an increased rating for a scar of the right shoulder, currently evaluated as 10 percent disabling. 6. Entitlement to an increased rating for a service-connected right shoulder disability, currently evaluated as 10 percent disabling. 7. Entitlement to an increased rating for a service-connected right knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to March 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the RO in St. Petersburg, Florida that denied an increase in a 10 percent rating for a service-connected left knee disability. In a September 2010 rating decision, the RO granted a separate 10 percent rating for instability of the left knee, effective October 11, 2007, the date of the increased rating claim. The Veteran's claim for an increased rating for the service-connected left knee disability remains on appeal, as he is not in receipt of the highest possible rating throughout the rating period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). This case was previously remanded in October 2012 for another VA examination and for a Board hearing, and was remanded again in July 2015 for a hearing. A personal hearing was held in November 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. Additional evidence was received from the Veteran in November 2015. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304. During the pendency of this appeal, the Veteran filed additional claims. In a December 2015 rating decision, the RO denied service connection for bilateral hearing loss, tinnitus and a low back disability, denied an increase in a 10 percent rating for a right shoulder scar, denied an increase in a 10 percent rating for a right shoulder disability, denied an increase in a 10 percent rating for a right knee disability, and denied increased ratings for the left knee disability. A notice of disagreement was received from the Veteran in December 2015 as to the claims for service connection for a back disability and hearing loss, and as to the ratings for a right shoulder scar, a right knee disability, and a left knee disability. In connection with the recent claims, the RO obtained a VA examination of the left knee disability in December 2015, after the current appeal was certified to the Board. The Board finds that remand for review of this pertinent evidence and issuance of a supplemental statement of the case by the RO is not required, since initial RO review of this evidence was accomplished in the December 2015 rating decision. Further, the Veteran was notified of this decision by a letter dated in December 2015. Remand for initial RO review of the other VA examination reports is not required, as the evidence is not pertinent to the issue of entitlement to an increased rating for a left knee disability. The issues of entitlement to service connection for a low back disability and bilateral hearing loss, and to increased ratings for a right shoulder disability, right shoulder scar, and right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). With regard to the Veteran's notice of disagreement with the December 2015 rating decision that denied an increased rating for a left knee disability, in light of the Board's grant of an increased rating for this disability in the instant decision, the AOJ's determination regarding the left knee disability in that decision is now moot. The Veteran is advised that he may appeal the forthcoming AOJ decision which implements the Board's award. FINDINGS OF FACT Throughout the rating period on appeal, the Veteran's service-connected left knee disability, status post arthroscopy, included a tear of the posterior horn of the lateral meniscus of the left knee with chondrocalcinosis, chondromalacia, and arthritis manifested by pain, effusion, and range of motion no worse than 0 to 70 degrees, and no more than slight lateral instability. CONCLUSIONS OF LAW 1. Throughout the rating period on appeal the criteria for an increased rating in excess of 10 percent for lateral instability of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2015); VAOPGCPREC 23-97. 2. Throughout the rating period on appeal, the criteria for a higher separate 20 percent rating based on a tear of the posterior horn of the lateral meniscus of the left knee with chondrocalcinosis, chondromalacia, and arthritis with pain, effusion and limitation of motion, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5258, 5259, 5260, 5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in August 2007. This letter informed him of the type of information and evidence required to substantiate this claim for an increased rating, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. He was also advised to provide evidence showing that his service-connected disability of a macular scar of the left eye had worsened, and of the downstream disability rating and effective date elements of these claims in this letter. He has received all required VCAA notice concerning this claim. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and that it is unduly prejudicial - meaning outcome determinative of his claims. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, VA has obtained service treatment records, assisted the appellant in obtaining evidence, obtained VA and private medical records, and arranged for VA compensation examinations and medical opinions as to the severity of his knee disability. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. With respect to the claim for an increased rating for a left knee disability only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). Here, the most recent VA compensation examinations for this condition were conducted in 2015. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria. In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected left knee disability to provide probative medical evidence for rating purposes. The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his left knee disability. 38 C.F.R. §§ 3.327(a), 4.2. The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide this claim. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (2015). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board accordingly will consider whether another rating code is more appropriate than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). 38 C.F.R. § 4.71a , Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for 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, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The diseases under Diagnostic Codes 5013-5024 are rated on limitation of motion of the affected part, as arthritis, degenerative, except gout, which is rated under Diagnostic Code 5002. 38 C.F.R. § 4.71a. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2015). Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2015). Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a , Diagnostic Code 5257 (2015). Symptomatic removal of the semilunar cartilage is assigned a maximum 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2015). Disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint are assigned a maximum 20 percent rating. 38 C.F.R. § 4.71a , Diagnostic Code 5258 (2015). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). VA's General Counsel has additionally held that separate ratings may also be assigned for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). Analysis The Veteran contends that his service-connected left knee disability is more disabling than currently evaluated. He asserts that the disability is manifested by constant pain, and limitation of motion, and limits his activities. His representative has contended that an increased 20 percent rating should be assigned for this disability under Diagnostic Code 5258. The representative asserted that there was constant pain that was worse during flare-ups, which lasted half of each week, his gait was altered to minimize pain, the legs and knees were different sizes, and he wore a brace almost all of the time. He asserted that the Veteran was not performing all of the duties of his job. The RO has assigned separate 10 percent ratings for the service-connected left knee disability, one for status post arthroscopy of the left knee medial meniscal tear with chondromalacia, under Diagnostic Code 5014-5260, and one for instability of the left knee under Diagnostic Code 5257. Previously, the left knee disability was rated under Diagnostic Code 5019, pertaining to bursitis. Diagnostic Code 5014 pertains to osteomalacia. In July 2000, the Veteran was diagnosed with a left knee medial meniscal tear and underwent a left knee arthroscopy and partial medial meniscectomy. The instant claim was filed in October 2007. VA outpatient treatment records reflect treatment for left knee pain and swelling. He reported wearing a brace at work. In March 2007, he was treated for complaints of severe pain and swelling. On examination, there was a large effusion, and range of motion was from 0 to 110 degrees, with a tender medial joint line. McMurray's sign was negative, and ligaments were intact. The diagnosis was effusion of the left knee of arthritic etiology versus internal derangement. On VA compensation examination in November 2007, the Veteran complained of left knee pain, giving way, instability, weakness, stiffness, effusion, and locking. He said he limited his walking, and continued to work as a police officer. On examination, there was crepitus, effusion, tenderness, pain at rest, weakness, guarding of movement, clicking, instability, grinding, swelling, and subpatellar tenderness. The meniscus was surgically absent, and McMurray's test was positive. Range of motion of the left knee was from 0 to 70 degrees, and extension was normal. There was objective evidence of pain on motion, but no additional limitations after three repetitions of range of motion. An X-ray study of the left knee showed moderate degenerative changes, calcification in the meniscus, and patellar spurring. The diagnosis was moderate bilateral degenerative changes with narrowed medial joint spaces, calcification in the meniscus, and patellar spurring. The examiner indicated that the disability had significant effects on the Veteran's occupational activities, including lack of stamina, decreased strength and pain. It was noted that the Veteran had lost no time from work due to his left knee disability in the past year. An April 2010 X-ray study of the left knee showed mild to moderate chondrocalcinosis with mild degenerative osteoarthritic changes of the posterior aspect of the patella. On VA compensation examination of the left knee in March 2013, the examiner indicated that the claims file was reviewed. The Veteran complained of constant left knee pain and intermittent swelling. He took Advil as needed and wore a knee brace constantly. He reported daily flare-ups after walking more than a quarter-mile or standing longer than 30 minutes. On examination, range of motion of the left knee was from 0 to 120 degrees, with painful motion on flexion at 120 degrees. There was no objective evidence of painful extension of the left knee. After repetitive-use testing with three repetitions, left knee range of motion was unchanged, but there was pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing and weight-bearing. There was pain to palpation of the left knee. Muscle strength was 5/5 (full) in flexion and extension of the left knee. There was posterior and medial-lateral instability of the left knee. There was no patellar subluxation or dislocation. The examiner noted that the Veteran had a partial medial meniscectomy of the left knee in July 2000, and had residual persistent pain, reduced range of motion and intermittent swelling. The examiner diagnosed left knee degenerative arthritis with chondrocalcinosis and chondromalacia, and tear of the posterior horn of the lateral meniscus of the left knee. The examiner opined that the left knee disability impacted his work and would impact any physical employment requiring extended walking or standing. On VA compensation examination of the left knee in June 2014, range of motion of the left knee was from 0 to 125 degrees. Range of motion was unchanged after repetitive use testing. It was noted that the Veteran had pain on motion, disturbance of locomotion and interference with sitting in both knees. Strength was 5/5 (full) in flexion and extension of the left knee. On examination, there was no instability, and no patellar subluxation or dislocation of the left knee. The examiner indicated that the Veteran had pain and decreased mobility due to his meniscectomy, and constantly wore a brace. A report of a June 2014 VA psychiatric examination reflects that he was currently employed as a DOD examiner for the state for the past three months and prior to that he worked for another state agency investigating unemployment fraud for three months. He was unemployed for 1.5 years before those jobs. He worked for the VA from 2003-2010 as a police officer and was let go because of an auto accident. A November 2014 VA outpatient treatment record reflects that the Veteran complained of chronic bilateral knee pain. It was noted that a magnetic resonance imaging (MRI) scan of the left knee showed no significant interval changes in the findings of meniscal chondrocalcinosis. The examiner could not entirely exclude superimposed tearing. Findings were similar when compared with prior studies. The diagnostic impression was low grade to intermediate grade medial joint compartment chondromalacia. An August 2015 magnetic resonance imaging (MRI) scan of the left knee showed meniscal chondrocalcinosis, intermediate grade medial joint compartment chondromalacia, and minimal tricompartmental osteoarthritis changes. The anterior cruciate and posterior cruciate ligaments were normal and there was no significant joint effusion or bursal collection. At his November 2015 Board hearing, the Veteran testified that his left knee disability is manifested by pain, swelling, popping, instability, limitation of motion and locking. He stated that he wore a knee brace. He said he worked in a sedentary position, and could no longer play sports. He testified that during his examination he moved his leg farther than he wanted to, despite his pain, because the examiner told him to do so. Although he implied that he was no longer working as a police officer due to his knee disability, VA medical records on file show that he left that job after a shoulder injury in a motor vehicle accident. A November 2015 private X-ray study of the left knee showed degenerative osteoarthritis, and chondrocalcinosis with no significant joint effusion. On VA examination in December 2015, the Veteran complained of daily recurrent bilateral knee pain. He reported that his symptoms were aggravated by walking for less than ten minutes. He took chondroitin and occasional naproxen for pain. He wore braces constantly when awake. On examination, range of motion of the left knee was from 0 to 115 degrees. There was pain on flexion, and with weightbearing. There was objective evidence of localized tenderness or pain on palpation of the patella. There was objective evidence of crepitus. After repetitive use testing, there was no additional functional loss or additional limitation of motion. Muscle strength was 5/5 (full) in the left knee. There was no muscle atrophy, and no ankylosis. On examination, there was no instability of the left knee. The examiner noted that the Veteran had residuals of pain and reduced mobility due to his arthroscopic knee debridement. The examiner opined that the knee disability would impact any job requiring prolonged or repetitive walking. As noted above, the Veteran's left knee disability has been assigned separate ratings by the Agency of Original Jurisdiction (AOJ) throughout the rating period on appeal, with one rating that is based on limitation of motion, and one based on instability. After a review of all of the evidence of record throughout the rating period, the clinical reports do not document that the Veteran's left knee disability was productive of functional impairment consistent with limitation of extension to 15 degrees or more or limitation of flexion to 30 degrees or more as required under Diagnostic Codes 5261 and 5260 for a rating in excess of 10 percent at any time during the appeal period. In fact, flexion of the left knee was generally greater than 110 degrees, and was no worse than 0 to 70 on examination during this period. See 38 C.F.R. § 4.71 , Plate II. Extension was full throughout this period. Even considering the effects of pain on motion, there is no probative evidence that pain reduced motion during this period to the extent required for an increased rating in excess of 10 percent under the limitation of motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has primarily contended that an increased rating was warranted for the left knee disability during this period due to severe knee pain. The Board has considered these contentions. However, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. See Mitchell, supra. In essence, the medical reports on file do not demonstrate the level of loss of motion (in either flexion or extension) necessary for either a higher rating or separate ratings based on limitation of flexion or extension at any time during this portion of the appeal period. The current 10 percent rating is proper for the left knee disability based on X-ray evidence of arthritis with painful motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010; Lichtenfels, supra; VAOPGCPREC 9-98. The Board has considered the Veteran's lay assertions regarding the severity of his left knee disability and his contention that his knee has occasionally given way. His statements are competent in regard to reports of symptoms and credible to the extent of the Veteran's sincere belief that his symptoms are more severe than the current rating. The Board has also considered the Veteran's demonstrated use of a left knee brace during this period. Even though left knee instability was not shown on several VA examinations, as it was shown on VA examinations in November 2007 and March 2013, a separate 10 percent rating is warranted throughout this period based on knee impairment with slight lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257; VAOPGCPREC 23-97; VAOPGCPREC 9-98. The Board concludes that the instability was no more than slight during this period since lateral instability was not found on VA compensation examinations in March 2013, June 2014 and December 2015. The evidence reflects that the Veteran's left knee disability also includes a tear of the posterior horn of the lateral meniscus of the left knee. Considering the left knee disability under Diagnostic Code 5259, pertaining to symptomatic removal of the semilunar cartilage, a higher rating in excess of 10 percent is not available under this code, as a 10 percent rating is the maximum rating under this Diagnostic Code. Further, the clinical evidence reflects that the symptoms due to his residuals of meniscectomy include pain and decreased mobility. See reports of June 2014 and December 2015 VA examinations. Thus, the Board finds that in this case, separate ratings based on pain with limitation of motion under 5260 and 5259 would constitute impermissible pyramiding under 38 C.F.R. § 4.14, and thus a separate rating is not warranted under Diagnostic Code 5259. Considering the left knee disability under Diagnostic Code 5258, pertaining to a dislocated semilunar cartilage, the clinical evidence does not show that the Veteran has a dislocated semilunar cartilage. However, the evidence reflects that the Veteran has a meniscal tear, he has complained of locking, constant pain, and effusion into the left knee joint, and left knee effusion has been objectively noted by some examiners. Hence, the Board finds that it is more favorable to rate the Veteran's left knee disability under Diagnostic Code 5258, based on frequent episodes of pain and effusion resulting in limitation of motion of the left knee, and a 20 percent rating is warranted under this Code instead of under Diagnostic Code 5260. Separate ratings are not warranted under both of these codes, as the clinical evidence reflects that the symptoms due to his residuals of meniscectomy include pain and effusion resulting in decreased mobility. See reports of June 2014 and December 2015 VA examinations. Thus, the Board finds that in this case, separate ratings based on pain with limitation of motion under 5260 and 5258 would constitute impermissible pyramiding under 38 C.F.R. § 4.14, and thus a separate rating is not warranted under Diagnostic Codes 5258 and 5260. A higher rating is not warranted under any applicable rating criteria throughout the rating period on appeal. Because there continued to be nearly full range of motion of this knee, even considering the arthritic pain, ankylosis of the left knee is not shown. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Thus, Diagnostic Code 5256 does not apply. As the evidence fails to demonstrate nonunion or malunion of the tibia or fibula, a higher rating is not possible under Diagnostic Code 5262. Additionally, as there is no showing of genu recurvatum, Diagnostic Code 5263 is inapplicable. There are no other relevant codes for consideration. In sum, the Board finds that a rating in excess of 10 percent is not warranted for instability of the left knee under Diagnostic Code 5257, and a higher separate 20 percent rating is warranted for frequent episodes of pain and effusion resulting in limitation of motion under Diagnostic Code 5258 (instead of Diagnostic Code 5260). These ratings adequately reflect the disability picture presented during this period. The Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's left knee disability (mainly pain, instability, effusion and limitation of motion) are contemplated by the applicable rating criteria. Higher ratings are possible under other Diagnostic Codes, but the required symptoms for such ratings have not been shown. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra. The effects of the Veteran's left knee disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Throughout the rating period on appeal, an increased rating in excess of 10 percent for instability of the left knee is denied. Throughout the rating period on appeal, an increased 20 percent rating for status post arthroscopy of the left knee medial meniscal tear with chondromalacia, chondrocalcinosis and arthritis is granted. REMAND During the pendency of this appeal, the Veteran filed additional claims. In a December 2015 rating decision, the RO denied service connection for bilateral hearing loss, tinnitus and a low back disability, denied an increase in a 10 percent rating for a right shoulder scar, denied an increase in a 10 percent rating for a right shoulder disability, denied an increase in a 10 percent rating for a right knee disability, and denied increased ratings for the left knee disability. A notice of disagreement was received from the Veteran in December 2015 as to the ratings for a right shoulder scar, a right knee disability, a left knee disability, and as to the claims for service connection for a back disability and hearing loss. As noted above, the December 2015 rating decision is now moot as to the issue of entitlement to an increased rating for a left knee disability. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, as in this case, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). These issues (with the exception of the left knee increased rating claim) are remanded for issuance of a statement of the case and to give the Veteran the opportunity to complete an appeal as to these issues. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: Provide a statement of the case to the Veteran and his representative, addressing the issues of entitlement to service connection for a low back disability and bilateral hearing loss, and to increased ratings for a right shoulder disability, a right shoulder scar, and a right knee disability. The Veteran and his representative must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if an appeal is timely perfected, should these issues be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs