Citation Nr: 1613915 Decision Date: 04/06/16 Archive Date: 04/25/16 DOCKET NO. 09-46 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to an evaluation in excess of 10 percent for status post left knee meniscectomy with degenerative arthritis prior to March 1, 2010; in excess of 10 percent from May 1, 2010 to October 20, 2010 for status post left knee medial meniscectomy and chondroplasty; and in excess of 60 percent for status post left knee medial compartment arthroplasty, status post left knee medial meniscectomy, and chondroplasty, with surgical scars from December 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1980 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Boston, Massachusetts, which denied service connection for COPD and an evaluation in excess of 10 percent for status-post left knee meniscectomy with degenerative arthritis. In a September 2010 rating determination, the RO assigned a temporary total disability evaluation for left knee arthroscopic medial meniscectomy and chondroplasty surgery performed on March 1, 2010, from March 1, 2010, to May 1, 2010, and assigned a 10 percent disability thereafter. In an April 2011 rating determination, the RO assigned a temporary total disability evaluation from October 20, 2010 to December 1, 2010, with a 100 percent schedular disability evaluation being assigned from December 1, 2010, to December 1, 2011, with a 30 percent disability evaluation thereafter, as a result of a left unicondylar knee replacement performed on October 20, 2010. In a September 2013 rating determination, the RO increased the assigned 30 percent disability for the left medial compartment arthroplasty from 30 to 60 percent effective December 1, 2011. As a result of the RO's actions, the Board has listed the issues as such on the title page of this decision. The Veteran was scheduled to appear at a Travel Board hearing at the RO in December 2015 and failed to report. He has not provided any reason for his failure to appear nor has he requested that his hearing be rescheduled. As such, the matter is now ready for appellate review. FINDINGS OF FACT 1. Any current COPD is not of service origin. 2. For the time period prior to March 1, 2010, the Veteran's left knee disorder was manifested by no limitation of extension, flexion to no less than 90 degrees, pain on motion, and no objective evidence of instability. 3. For the time period from May 1, 2010, to October 20, 2010, the Veteran's left knee disorder was manifested by no limited extension, flexion to no less than 90 degrees, pain on motion, and no objective evidence of instability. 4. The Veteran was granted the maximum 60 percent rating under Diagnostic Code 5055 beginning December 1, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for an evaluation in excess of 10 percent for status post left knee meniscectomy with degenerative arthritis prior to March 1, 2010, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5010, 5256, 5257, 5259, 5260, 5261 (2015). 3. The criteria for an evaluation in excess of 10 percent for status post left knee meniscectomy and chondroplasty from May 1, 2010 to October 20, 2010, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5010, 5256, 5257, 5259, 5260, 5261 (2015). 4. For the rating period beginning December 1, 2011, the criteria for a rating in excess of 60 percent for the left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.68, 4.7, 4.71a, Diagnostic Code 5055 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 11 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2014). In addition, the notice requirements of the VCAA apply to all five elements of a claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As to the issue of service connection for COPD, the RO, in a December 2008 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The December 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. As to the claim for an increased evaluation for a left knee disorder, a VCAA notice letter sent in September 2008 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information on disability ratings and effective dates required by Dingess. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, private, and Social Security, have been obtained and associated with the claims folder. No other relevant records have been identified. As it relates to the necessity for an examination for service connection for COPD, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion be obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's claimed disability is related to his military service is his own conculsionary generalized lay statements, which are unsupported by even speculative medical evidence. Further, there is significant evidence against this claim, including treatment records currently on file. Accordingly, the Board finds that referral for a VA medical examination is not warranted. As to the left knee disability, the Veteran was afforded several VA examinations relating to the claimed disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 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 of record are adequate for rating purposes, because they were performed by a medical professional, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that a further examination is not necessary. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and through a hearing if so desired. The Board notes that the Veteran failed to report for his scheduled December 2105 Travel Board hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. COPD Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's diagnosed COPD is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran maintains that he currently has COPD which had its onset in service. A review of the Veteran's service treatment records reveals no complaints, findings, or diagnoses of breathing problems/COPD. The first notation of COPD subsequent to service was in December 2003 when x-rays findings revealed COPD. The Board finds that the weight of the evidence is against the conclusion that any current COPD had its onset in service. The Veteran was not seen for COPD or any breathing problems in service. Furthermore, as noted above, the Veteran's post-service treatment records confirm that he was not seen with any complaints of breathing problems until 2003; therefore, the evidence does not reflect in-service breathing/COPD symptoms. As to the Veteran's reports that he has had COPD ever since his period of service, the Board finds that the contemporaneous evidence shows that the Veteran did not report having breathing problems in service. Moreover, on his initial application for compensation, received in April 1992, the Veteran did not report having breathing problems/COPD. This suggests to the Board that there was no pertinent breathing problem/COPD symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for COPD/breathing problems at the time of the 1992 application for benefits, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not suffer from COPD/breathing problems since service, or the lack of COPD symptomatology at the time he filed the claim, or both. Breathing problems were first reported in 2003. This contemporaneous evidence outweighs and is more probative than are his assertions voiced years later and in connection with a claim for disability benefits. The above evidence is more probative than are his assertions, voiced well beyond his period of service, that any claimed COPD is related to his period of service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board concludes that the assertions of COPD symptoms in service and since service are not credible. As to the Veteran's beliefs that any COPD is related to his period of service, the question of causation of such COPD extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this case, the Veteran does not have the requisite training or expertise to diagnose the cause of his current COPD. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was afforded the opportunity to provide medical evidence and/or an opinion relating his current COPD to his period of service. He has not provided either medical evidence or an opinion to support this proposition. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for COPD. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Left Knee Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 5003 provides that 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 (DC 5200 etc.). 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 evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. 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. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Prosthetic replacement of a knee joint, for one year following implantation of the prosthesis warrants a 100 percent rating. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent evaluation will be assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the knee replacement is rated by analogy to 38 C.F.R. Part 4, DCs 5256, 5261, or 5262. 38 C.F.R. § 4.71 , DC 5055. The minimum rating assigned will be 30 percent. Under DC 5256, favorable ankylosis of the knee, ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent evaluation; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent evaluation; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, DC 5256. Diagnostic Code 5259 applies to removal of symptomatic semi lunar cartilage. A 10 percent rating applies for this disability. 38 C.F.R. § 4.71a, DC 5259. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2015). The Veteran maintains that the symptomatology associated with his service-connected left knee disorder warrants disability evaluations higher than those currently assigned. In July 2008, the Veteran requested an increased disability evaluation for his left knee disorder, indicating that the symptomatology associated with it had worsened in severity. Private treatment records associated with the record reveal that at the time of a March 2008 visit, the Veteran was noted to have moderate tenderness on pressure over the medial border of the patella and anteromedial joint line. Full extension was reported and flexion was to 95 degrees, with moderate crepitation being present. At the time of a February 2009 VA examination, the Veteran reported having been diagnosed with internal derangement of the knee. The reported pain traveled to the back of the thigh. The Veteran stated that the pain was aching and sharp. From 1 to 10 (10 being the worst pain), the pain level was at 9. He reported that the pain was elicited by physical activity and was relieved by rest and Percocet. He indicated that he could function with medication. The Veteran also noted having weakness, swelling, heat, giving way, and locking. He did not have stiffness, redness, lack of endurance, fatigability, or dislocation. The Veteran further reported having pain with walking. Physical examination revealed a level scar present at the left medial knee measuring about 3.5 cm by 0 3 cm. The scar had hypopigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, abnormal texture, or limitation of motion. As to the left knee, tenderness was present. There were no signs of edema, effusion, weakness, redness, heat, or guarding of movement. There was no subluxation. There was also no locking, pain, genu recurvatum, or crepitus. Range of motion included flexion to 140 degrees and extension to 0 degrees. On the left, joint function was additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance, incoordination, with pain being the major functional impact. There was no additional limitation in degrees after repetitive motion. The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral collateral ligaments stability test and the medial and lateral meniscus test of the left knee were also within normal limits. X-rays of the left knee showed arthritic changes. The previous diagnosis of internal derangement of the left knee was changed to status-post left knee meniscectomy with surgical scar and degenerative arthritis. In his May 2009 notice of disagreement, the Veteran reported that he was having trouble getting around due to the pain in his left knee and right ankle. In his November 2009 substantive appeal, the Veteran indicated that he had had a MRI performed on his knee which revealed that it was full of arthritis. On October 20, 2010, the Veteran underwent a left knee arthroplasty. At the time of a December 2010 VA examination, the Veteran reported experiencing flare-ups as often as 10 time(s) per day, each time lasting for 2 hours. He rated his pain severity level as 10. The flare-ups were precipitated by physical activity and also occurred spontaneously. They were alleviated by Percocet and Motrin 800 mg. During the flare-ups, he experienced limited activity, worse since the partial knee replacement, and limitation of motion of the joint, which was described as very limited knee flexion. He reported difficulty with standing/walking. He noted needing an assistive device for walking and extended standing. The Veteran noted having had a left knee meniscectomy at Cambridge Hospital on 2001, with resultant residual pain. He also reported having a medial meniscectomy/chondroplasty at VA Jamaica Plain in March 2010, with resultant pain. He stated his condition in the past 12 months had not resulted in any incapacitation. He also noted having had a replacement of the medial unicompartment of the left knee, which was performed in October 2010. He reported the replacement joint had painful motion and had weakness. The Veteran also noted having locking. He indicated that the overall functional impairment post-surgery of pain had increased and that function had decreased. Physical examination revealed a vertical medial left knee scar, which measured 10 cm by 0.5 cm. The scar was not painful on examination. There was no skin breakdown. It was superficial with no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation. The scar was not disfiguring and did not limit motion. There was no limitation of function due to the scar. There was a second scar located vertical over left knee. This was a linear scar that measured 13 cm by 0.2 cm. The scar was not painful on examination and there was no skin breakdown. It was superficial with no underlying tissue damage, and inflammation and edema were absent. There was no keloid formation. The scar was not disfiguring and did not limit motion, and there was no limitation of function due to the scar. Examination of the left knee revealed no effusion, tenderness, or heat. There were no signs of edema, instability, abnormal movement, weakness, redness, deformity, guarding of movement, malalignment, or drainage. There was also no subluxation, locking, pain, genu recurvatum, crepitus, or ankylosis. Range of motion was from 0 to 75 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits for the left knee. The examiner rendered a diagnosis of status post left knee medial compartment arthroplasty, status post left knee medial meniscectomy, and chondroplasty with surgical scars. At the time of a September 2012 VA examination, the Veteran reported having pain on the lateral side of his left knee constantly. He was on Oxycodone-5mg, acetaminophen 325 tab I or II, up to 10 per day. Physical examination revealed flexion from 5 to 80 degrees. Range of motion after repetitive testing was from 5 to 85 degrees. The Veteran was noted to have less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance with locomotion, and interference with sitting, standing, and weight bearing. Muscle strength was 4/5 for flexion and extension. The examiner could not perform Lachman or posterior drawer tests. Varus/valgus was 1+ on the left. The Veteran was noted to have pain on palpation due to the meniscectomy. The examiner indicated that the Veteran had chronic residuals consisting of severe painful motion or weakness resulting from his left knee replacement surgery. With regard to the scars, the scars were not greater than 39 square cms. The examiner indicated that the Veteran used braces, crutches, and cane on a regular basis. The Veteran reported using a knee brace at least once a day, because the knee occasionally felt like it was going to go the other way (hyperextend). He also reported using a left hand Lofstrand crutch or a cane, particularly when he was walking his dog. The examiner indicated that there was no functional impairment of the extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Entitlement to an Evaluation in Excess of 10 percent for Status-post Left Knee Meniscectomy with Degenerative Arthritis Prior to March 1, 2010 The above findings, including flexion to 95 degrees at the time of a December 2008 visit, and flexion to 140 degrees at the time of the February 2009 VA examination, demonstrate a preponderance of the evidence against entitlement to a rating higher than 10 percent based upon painful motion. The Veteran retained the functional equivalent of flexion to more than 90 degrees even when accounting for pain. Also, extension at most was limited to no less than 0 degrees during this time frame, as demonstrated at the time of the February 2009 VA examination. The record as a whole provides no basis to provide a higher rating for the left knee. The Board has considered the holding in DeLuca and finds that the assigned 10 percent evaluation appropriately compensates the Veteran's pain in light of the noncompensable loss of flexion and extension. As noted, while the February 2009 examination report indicated that the Veteran had pain in his left knee, there was no objective evidence of painful left knee motion on extension, and despite painful left knee flexion there was no additional limitation of motion after repetitive testing. Such findings preponderate against establishing entitlement to an evaluation in excess of 10 percent for the left knee based upon painful motion. The Board has considered whether a separate compensable evaluation is warranted based on instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. While the Veteran reported that giving way of his knee, clinical examinations reveal no ligamentous instability. There is also no evidence or history of recurrent patellar subluxation/dislocation. The Veteran is competent to report giving way, however, were no objective findings of instability or subluxation. For example, at the time of the February 2009 VA examination, the medial and lateral collateral ligaments stability test and the medial and lateral meniscus test of the left knee were within normal limits. Given the examiner's experience, knowledge, and expertise the Board finds that the objective findings are of greater probative value than statements made in support of a claim for monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a Veteran's testimony simply because he is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the evidence preponderates against finding entitlement to a separate rating under Diagnostic Code 5257. The Board also finds that a separate compensable rating for meniscectomy of the left knee under Diagnostic Code 5259 is not warranted. Under that Diagnostic Code a 10 percent rating may be assigned if the removal of a semilunar cartilage is symptomatic. In this regard, when considering separate ratings under different diagnostic codes VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14. With regard to rating knee disabilities VA's General Counsel has issued two opinions indicating that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOGCPREC 9-98 (August 14, 1998). Significantly, in VAOGCPREC 9-98 General Counsel found that limitation of motion is a relevant consideration under Diagnostic Code 5259. As noted above, the Veteran's left knee disability is already rated based on limitation of motion. As limitation of motion is a relevant consideration under Diagnostic Code 5259, separate ratings based on the same functional loss are not warranted under Diagnostic Codes 5259 and 5260. That same analysis holds true for the remaining pathology, i.e., osteoarthritis is rated on limitation of motion, and swelling is considered under painful motion, it follows that the appellant is not entitled to a separate rating for residuals of a meniscectomy under the principle against pyramiding. Furthermore, the evidence is devoid of a showing of ankylosis of the knee (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262) or genu recurvatum (Diagnostic Code 5263) as such these codes are inapplicable. The Board acknowledges the Veteran's assertions that his disability was more severe than evaluated to include his reports of pain, swelling, and instability. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board also considered the Veteran's statements and reports, and finds that the Veteran is credible in reporting the severity of his disability. The more credible and probative evidence, however, is devoid of showing that the criteria for the next higher evaluation have been met. The examinations disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 45 degrees or less, or limitation of extension greater than 10 degrees. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported, the competent evidence does not show the functional equivalent of disability required for a higher evaluation. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Entitlement to an Evaluation in Excess of 10 Percent for Status Post Left Knee Medial Meniscectomy and Chondroplasty from May 1, 2010 to October 20, 2010 The above findings demonstrate a preponderance of the evidence is against entitlement to a rating higher than 10 percent based upon painful motion during this time period. There was no demonstration during this time period that the Veteran did not retain the functional equivalent of flexion to more than 90 degrees even when accounting for pain. Also, extension was not shown to be limited during this time frame. There were no findings to provide for a higher rating for the left knee. The Veteran's range of left knee motion was shown to warrant no more than a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. The Board has considered the holding in DeLuca and finds that the assigned 10 percent evaluation appropriately compensates the Veteran's pain in light of the noncompensable loss of flexion and extension. There was no objective evidence of painful left knee motion on extension, and despite painful left knee flexion there was no additional limitation of motion after repetitive testing demonstrated during this time period. The Board has considered whether a separate compensable evaluation is warranted based on instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. While the Veteran reported giving way of his knee there were no clinical examinations performed which revealed ligamentous instability. There were also no objective findings of instability or subluxation. Accordingly, the evidence preponderates against finding entitlement to a separate rating under Diagnostic Code 5257. Furthermore, the evidence is devoid of a showing of ankylosis of the knee (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262) or genu recurvatum (Diagnostic Code 5263) as such these codes are inapplicable. The Board acknowledges the Veteran's assertions that his disability was more severe than evaluated to include his reports of pain, swelling, and instability. The more credible and probative evidence, however, is devoid of showing that the criteria for the next higher evaluation have been met. The examinations of record at this time disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 45 degrees or less, or limitation of extension greater than 10 degrees. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported, the competent evidence does not show the functional equivalent of disability required for a higher evaluation. Entitlement to an Evaluation in Excess of 60 Percent for Status Post Left Knee Medial Compartment Arthroplasty; Status Post Left Knee Medial Meniscectomy and Chondroplasty with Surgical Scars from December 1, 2011 The Veteran was granted a 60 percent rating under Diagnostic Code 5055 beginning December 1, 2011. The 60 percent evaluation assigned for left knee replacement is the maximum evaluation provided for most knee disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2015). The only diagnostic code that provides for a higher evaluation of 80 percent contemplates impairment of the femur due to fracture of the shaft or anatomical neck of the femur, with resulting nonunion and loose motion. 38 C.F.R. § 4.71a, Diagnostic Code 5255. However, the evidence does not demonstrate any femur fracture, nonunion, or loose motion in this case. Further, a schedular evaluation greater than 60 percent for the Veteran's left knee disability is prohibited by the "amputation rule," found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Here, amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5162. In other words, the Veteran cannot receive a higher rating for his replaced knee than for an amputated leg. Moreover, as the 60 percent disability rating assigned is the maximum rating assigned for motion loss, the Board finds no legal basis for further consideration of 38 C.F.R. §§ 4.40 and 4.45. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). Also, given that the Veteran is currently at 60 percent disabling for his left knee disability, he would not be able to receive a separate compensable rating under another applicable diagnostic code. Thus, even if the Board were to assign a separate rating under a different diagnostic code, the Veteran could not be paid compensation above the 60 percent level because of the amputation rule described above. Accordingly, all applicable possibilities were considered for a higher or separate rating, and a schedular rating in excess of 60 percent for the Veteran's service-connected left knee disability is not warranted for the rating period beginning December 1, 2011. As to the scars resulting from the surgeries, the Board notes that the criteria used to evaluate disabilities of the skin were revised during this appeal, in 2008. The Board notes that the applicability of the 2008 amendment is specified as follows: "[t]his amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. § 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. See 73 Fed. Reg. 54708-01. As the Veteran's claim was received in July 2008, prior to October 23, 2008, and he has not requested that his disability be evaluated under the new criteria, the Board will consider the pre-October 2008 criteria. Scars, other than on the head, face, or neck, that are deep or cause limited motion are rated under Diagnostic Code 7801. A 40 percent evaluation is warranted for scars exceeding 144 square inches (929 sq. cm.) in area. A 30 percent evaluation is warranted for scars exceeding 72 square inches (465 sq. cm.) in area. A 20 percent evaluation is warranted for scars exceeding 12 square inches (77 sq. cm.) in area. A 10 percent evaluation is warranted for scars exceeding 6 square inches (39 sq. cm.) in area. A deep scar is one associated with underlying soft tissue damage. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Scars, other than on the head, face, or neck, that are superficial or do not cause limited motion are rated under Diagnostic Code 7802. A 10 percent evaluation is warranted for scars of 144 square inches (929 sq. cm.) or greater in area. A superficial scar is one not associated with underlying soft tissue damages. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118 , Diagnostic Code 7802 (2008). Superficial, unstable scars warrant a 10 percent evaluation under Diagnostic Code 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). Superficial scars, painful upon examination, warrant a 10 percent evaluation under Diagnostic Code 7804. A superficial scar is one not associated with underlying soft tissue damage. A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe, even though amputation of the part would not warrant a compensable evaluation under 38 C.F.R. § 4.68. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Other scars are to be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). As the Veteran's scars have not been shown to be larger than 39 square cm, to not be painful on examination, to have no skin breakdown, to be no more than superficial with no underlying tissue damage and no keloid formation, to not be disfiguring and to not limit motion or function, a compensable evaluation is not warranted for the post-surgical scars at any time. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2008). Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R.§ 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Veteran's left knee disability has been manifested by painful motion associated with degenerative changes and a total knee replacement. The schedular rating criteria contemplate such symptomatology. The schedular rating criteria specifically provides ratings for such noncompensable limitation of motion due to painful arthritis (Diagnostic Codes 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5055, 5256, 5260, 5261), including motion limited to orthopedic factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), as well as instability and subluxation (Diagnostic Code 5257). In this case, comparing the Veteran's disability level and symptomatology of the left knee to the rating schedule, the degree of disability throughout the entire periods under consideration is contemplated by the rating schedule and the assigned ratings are therefore adequate. Because the schedular rating criteria are adequate to rate the Veteran's left knee disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Further, and according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER Service connection for COPD is denied. For the rating period prior to March 1, 2010, a rating in excess of 10 percent for status post left knee meniscectomy with degenerative arthritis, is denied. For the rating period from May 1, 2010 to October 20, 2010, a rating in excess of 10 percent for status post left knee medial meniscectomy and chondroplasty is denied. For the rating period beginning December 1, 2011, a rating in excess of 60 percent for the Veteran's status post left knee medial compartment arthroplasty; status post left knee medial meniscectomy and chondroplasty with surgical scars is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs