Citation Nr: 20060441 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 16-11 303A DATE: September 14, 2020 ORDER An initial rating in excess of 10 percent for right knee degenerative joint disease (DJD) is denied. FINDING OF FACT The Veteran’s right knee DJD has most closely approximated limitation of flexion of the leg to 45 degrees or greater. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right knee DJD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59 4.71a, Diagnostic Codes 5003, 5256-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1958 to October 1959. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. It was remanded by the Board in April 2017 and November 2017. Legal criteria Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code (DC) 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent. 38 C.F.R. § 4.71a. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent); flexion of the leg limited to 45 degrees is rated 10 percent; flexion of the leg limited to 30 degrees is rated 20 percent; and flexion of the leg limited to 15 degrees is rated 30 percent. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent); extension of the leg limited to 10 degrees is rated 10 percent; extension of the leg limited to 15 degrees is rated 20 percent; extension of the leg limited to 20 degrees is rated 30 percent; extension of the leg limited to 30 degrees is rated 40 percent; and extension of the leg limited to 45 degrees is rated 50 percent. 38 C.F.R. § 4.71a; see VAOPGCPREC 9-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent. 38 C.F.R. § 4.71a. Separate disability ratings are possible for limitation of knee motion and instability of a knee under DC 5257. See VAOPGCPREC 23-97. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When a reasonable doubt arises regarding the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. Factual background The Veteran has an initial 10 percent rating for his right knee DJD, effective January 31, 2009. He has been given several VA examinations during the appeal period. On August 2009 VA examination, the Veteran reported right knee pain, stiffness, and weakness, with locking episodes one to two times per year and episodes of knee swelling, but no giving way, instability, incoordination or episodes of dislocation or subluxation. He reported one flare-up a year for 3-7 days of moderate severity, and limitations of being able to stand for 15-30 minutes and being able to walk 1-3 miles, and constant use of a brace. On examination, gait was antalgic with no other evidence of abnormal weight bearing, and there was right side knee tenderness and moderate crepitus and grinding, but no instability or patellar or meniscus abnormality. Range of motion testing revealed flexion of 0 to 100 degrees, with pain beginning at 90, and extension to 0 degrees with no pain, and no additional pain on repetition. Magnetic resonance imaging (MRI) revealed medial meniscal degeneration without tear, probable mild insertional tendinitis of the distal quadricep tendon, and no ligament tear or acute fracture. X-ray revealed mild degenerative changes and a questionable right knee joint effusion. Functional effects included decreased mobility, and problems with lifting and carrying. On January 2016 VA examination, the Veteran reported worsening knee pain with flares-ups at which time he had to where knee braces and could not stand or walk for a prolonged period of time, and the pain caused him to limp. On range of motion testing, flexion was to 100 degrees and extension to 0 degrees with pain with motion, mild tenderness, and crepitus, but no evidence of pain with weight bearing. Muscle strength was full (5/5) in flexion and extension with no reduction, and there was no ankylosis. Joint stability testing revealed no instability, and there was noted to be no history of lateral instability or recurrent subluxation. It was noted that the Veteran did not have and had never had a meniscus (semilunar cartilage) condition. Regarding assistive devices, he used a right knee brace due to knee pain. October 2015 X-rays were noted to reveal degenerative changes with mild narrowing, and June 2014 MRI revealed minimal degenerative cartilage change with no meniscal tear and articular cartilages intact but with mild irregularly. The examiner noted that there was no history of the right knee giving way/instability/subluxation either on August 2009 VA examination or on current examination, and the Veteran stated that that had not happened for more than 20 years. The 2014 MRI showed no medial or lateral meniscal tear; posterior cruciate and medial collateral ligaments intact with mild irregularity of the articular cartilages; no MRI evidence of ligamentous pathology; and minimally degenerative cartilages. The examiner further noted that the Veteran felt that his condition had worsened since 2009, reflected in change in medications, the need for steroid/Synvisc injections, and the need for a knee brace, which the examiner noted could be used for indications other than laxity/instability of a joint. On June 2017 VA examination, the Veteran reported continuing to have worsening knee pain popping on bending, twisting and squatting activities, receiving right knee injections in March 2016 without much relief, and frequent swelling on right knee. He reported having right knee arthrocentesis in 2/2016, and that he was sent to physical therapy but was interrupted due to recent coronary surgery in 2016. He reported having had no surgeries on the right knee, wearing a right knee brace during physical activities, and taking Tylenol when having severe pain. He further reported flare-ups of pain on climbing stairs and kneeling, and difficulty in kneeling and getting up from kneeling, climbing stairs, and prolonged walking and standing. On physical examination, range of motion testing revealed flexion to 100 degrees and extension to 0 degrees with pain noted in flexion but no evidence of pain with weight bearing or crepitus. Range of motion was unchanged with repetition. Additional contributing factors of disability were noted to be intermittent swelling with none noted at the time of the examination. Flexion strength was 4/5 (active motion against some resistance), extension was full 5/5. There was no ankylosis or history of lateral instability or recurrent subluxation or recurrent effusion. Stability was normal in all testing, and it was again noted that the Veteran did not have and had never had a meniscus (semilunar cartilage) condition. The Veteran reported use of the assistive device of a right knee brace, used occasionally, “when anticipating activities.” Functional impact was noted to be limitation in kneeling, climbing stairs, and prolonged standing and walking. The examiner reported that there was no evidence of pain on passive range of motion testing or when the joint was used on weight bearing. In the Board’s November 2017 remand, it requested an addendum opinion from the June 2017 VA examiner describing any additional functional loss during flare-ups of the Veteran’s right knee disability, expressing any functional limitation in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups, to the extent possible. The examiner was also to explain a notation appearing under a prompt to describe additional contributing factors of the Veteran’s right knee disability, of: “Less movement than normal due to ankylosis, adhesions, etc., Weakened movement due to muscle or peripheral nerve injury, etc., Interference with standing.” The examiner was to explain this notation in light of the fact that it appeared to contradict other information in the examination report, including the lack of any ankylosis noted, and the absence of any “muscle or peripheral nerve injury” related to the Veteran’s service-connected right knee DJD. The examiner provided the opinion in January 2018, again noting that the Veteran had reported right knee flare-ups described as flare-ups of right knee pain on climbing stairs, kneeling, and getting up from kneeling positions. It was again noted that his reported functional loss at those times was difficulty with kneeling, climbing stairs, getting up from a chair, and prolonged walking and standing. In expressing any functional limitation in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups, to the extent possible, the examiner expressed right knee flexion of 100 with pain beginning at that point, and extension of 0 with no painful motion. It was noted that the lessened and weakened motion on June 2017 VA examination was due to pain; that the Veteran had no ankylosis, both on X-ray/MRI and physical examination; and that he had no muscle and peripheral nerve injury due to right knee arthritis, explaining that right knee arthritis was a separate and unrelated condition to the muscles or peripheral nerves, and was a joint disorder. An initial rating in excess of 10 percent for right knee DJD is denied. The Veteran’s right knee DJD has been manifested by pain, tenderness, crepitus and grinding, worsened by activities such as bending, twisting and squatting. There has been an occasionally antalgic gait, some reduction of flexion strength noted in 2017 (but full strength in 2016), and use of a knee brace, particularly with physical activity. It has resulted in being limited to standing for 15-30 minutes and walking 1-3 miles, decreased mobility, problems with lifting and carrying, and limitations in kneeling and climbing stairs. It has also been manifested by flare-ups with varying reported frequency, severity and duration, from once a year of moderate severity to inability to stand or walk for a prolonged period of time and difficulty putting weight on the knee, resulting in additional difficulty in kneeling and getting up from kneeling, getting up from a chair, climbing stairs, and prolonged walking and standing. However, even considering the Veteran’s right knee symptomatology, his disability does not approximate the criteria for a rating of 20 percent or greater. Range of motion testing has repeatedly reflected no impairment in extension and flexion limited, at most, to 100 degrees with pain beginning at 90. Even considering his functional impairment noted above, including occasional antalgic gait, some reduction of flexion strength, and flare-ups as reported by the Veteran, his disability has not approximated range of knee motion limited to 30 degrees of flexion. Thus, a rating of 20 percent or greater under DC 5260 is not warranted. VA treatment records during the period in question, moreover, reflect right knee disability consistent with that noted on the VA examinations. MRI noted from October 2009 and June 2014 reflect “modest meniscus degeneration” or “Minimal degenerative cartilage change,” and X-rays have consistently reflected mild osteoarthritis. Right knee symptoms have been noted to be pain, particularly with use, grinding and crepitus, tenderness to palpation, use of a knee brace, and intermittent knee pain and popping with bending, twisting, and squatting activities. Strength testing in July 2016 was noted to show knee flexion 4/5 and extension 5/5, but was full in November 2016. Range of motion testing was noted to show some limitation with decreased flexion in May 2014, but to be normal with full flexion and extension in October 2015 and February 2016; in July 2016, range of knee motion was noted to be 0 to 110 degrees, with pain with flexion and popping with extension. While the Veteran was noted to ambulate without assistance, he was noted in April 2010 to have a limp, and in July 2016 to have minimal antalgia of his gait. In May 2016, it was assessed that, given the Veteran’s minimal imaging changes, it seemed like a lot of his pain may be due to hamstring tightness, and he was recommended for a trial of physical therapy (PT) to work on hamstring stretching and quad strengthening. In July 2016 it was noted that the Veteran’s current pain at rest was 5/10, and that he golfed regularly. In September 2016, he reported a marked decrease in pain since his last PT visit, and noted good tolerance golfing without increased pain twice in the last week; he demonstrated good tolerance to all PT activity and much improved range of motion in the right hip and knee, with negative antalgia observed in his gait that day. In May 2017, the Veteran reported trying to walk daily, with 10,000 steps a day, despite his knee pain, and doing his stretching exercises. Examination and opinion adequacy The Veteran and his attorney have made several arguments in September 2014, August 2016, October 2017, and March 2018 statements. Initially, they have challenged the adequacy of the June 2017 VA examination and January 2018 addendum. In October 2017, the Veteran’s attorney asserted that the June 2017 VA examination “failed to test [range of motion] of the right knee in active motion, passive motion, weight bearing, and non-weight bearing, as instructed by the Board” in its April 2017 remand. However, the June 2017 VA examination substantially complied with the Board’s April 2017 remand instruction, recording active range of motion measurements and stating that there was no evidence of pain on passive range of motion testing or when the joint was used on weight bearing. The examiner thus “tested for pain” on “active and passive motion,” as well as “in weight-bearing and nonweight-bearing,” and reported the results of such. There is no indication or explanation of how the Veteran, or the examination results overall, might have been prejudiced by such testing and reporting by the examiner, which complied with the Board’s remand instructions and 38 C.F.R. § 4.59. The Veteran’s attorney also asserted that in June 2017, the VA examiner indicated there was additional functional loss with at least three repetitive movements of the right knee, but that the range of motion findings after repetition were the same as those recorded without repetition, and that “[c]larification is necessary for this contradictory finding, which does not depict that additional functional loss in degrees as instructed by the Board.” However, while the Board in April 2017 requested that the examiner portray “any functional limitation in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups, to the extent possible,” there is nothing contradictory about the VA examiner’s finding the same range of motion before and after repetition, and the examiner’s finding that there was additional functional loss of pain, fatigue and weakness after repetition. The exam question the examiner was prompted to answer was” “Is there additional functional loss or range of motion after three repetitions?” (Emphasis added.) The examiner answered that there was, and when prompted to “Select all factors that cause this functional loss,” she answered “Pain, Fatigue, Weakness.” That the Veteran had the same range of motion only with increased pain, fatigue, or weakness, is not contradictory, and the Board does not find the responses inadequate or noncompliant with the Board’s examination request. Similarly, in a March 2018 statement, the Veteran’s attorney took issue with the fact that while the examiner assessed that there was “functional loss of the right knee during flare-ups,” the assessed range of motion during flare-ups were “the same as the initial range of motion measurements.” However, again, the examiner’s assessment that additional range of motion would not be lost during flare-up is not inconsistent with the Veteran’s subjective reports noted regarding his flare-ups—difficulty with usages of the knee, such as kneeling, climbing stairs, getting up from a chair, and prolonged walking and standing—none of which necessarily imply a lessened range of motion. The Board, as discussed above, has considered whether such additional impairment with flare-ups approximates a higher disability rating level based on such symptomatology—a finding of fact for the Board in determining a rating, not a medical question—and has determined that it does not. Again, even considering such additional impairment with flare-ups and other considerations beyond the Veteran’s specific range of motion findings, his right knee DJD does not approximate disability of the level of limitation of flexion to only 30 degrees—to one-third or less of his actual flexion. Such disability, rather, is reasonably contemplated in the rating for disability of the level approximating limitation of flexion to 45 degrees. In the March 2018 statement, the Veteran’s attorney further asserted the following: … The examiner further stated the veteran does not have any muscle or peripheral nerve injury due to right knee arthritis as they are separate and unrelated to one another. This is false. The June 2017 C&P examiner report clearly notes a reduction in muscle strength with extension of the right knee. However, reduction of muscle strength due to joint disability—which to some extent has been shown in the record—is not the same as a “muscle injury” related to the knee, which the Veteran does not have and has never been determined to have. In this regard, the Board notes that muscle injuries are rated under an entirely separate section of the rating code than joint injuries, and contemplate types of injury such as “[a]n open comminuted fracture with muscle or tendon” and a “through-and-through injury” caused by projectiles such as bullets or shrapnel or other penetration wounds. See 38 C.F.R. §§ 4.56, 4.73. What such “muscle injury” the Veteran might have resulting from his DJD, or any evidence in the record that might show this, has not been identified by the Veteran’s attorney and is not discernable from the record. The Veteran’s attorney further asserted that “[t]he January 2018 addendum opinions did not address adhesions noted in the June 2017 examination, as instructed to in the Board remand.” However, as made clear in the January 2018 addendum, the selection of “Less movement than normal due to ankylosis, adhesions, etc., Weakened movement due to muscle or peripheral nerve injury, etc.,” for the question prompt regarding additional contributing factors of disability, was done mistakenly by the VA examiner; the examiner provided a clarifying answer to the question and stated that, despite the June 2017 answer given, the Veteran did not have ankylosis, muscle injury, or peripheral nerve injury related to his knee disability. Moreover, similarly to ankylosis, muscle injury, or peripheral nerve injury, the record reflects no evidence whatsoever suggesting “adhesions” related to the Veteran’s right knee DJD, and no evidence of these has been identified by the Veteran’s attorney, nor any explanation given of what these might even be. Accordingly, remand for the VA examiner to specifically address the 2017 “adhesions” notation is not warranted. The March 2018 statement also contains the following: “Furthermore, it is unclear whether the severity of the veteran’s service-connected right knee condition is increased, absent the ameliorative effects of his knee brace, which he uses for any physical activity.” (Emphasis in original text.) Initially, as discussed above, the Veteran has used a right knee brace for the entire appeal period, beginning in 2009, and it is unclear how subsequent use would demonstrate worsening, or to what extent worsening could be considered to have occurred. While the Veteran has repeatedly reported use of a right knee brace, there is no indication that such knee brace was used on VA examination testing or of how it might have affected any testing results; the Veteran’s attorney has not identified any, or what “ameliorative effects” might have rendered the test results inadequate or how. Therefore, the Board does not find any arguments regarding the claimed inadequacy of the June 2017 VA examination and corresponding January 2018 addendum opinion persuasive. It finds these adequate to decide the Veteran’s rating claim on the merits, and to have substantially complied with the Board’s April 2017 and November 2017 remand instructions. See D’Aries v. Peake, 22 Vet. App. 97, 105-106 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Other rating codes/extraschedular consideration The Veteran and his attorney have also put forth arguments that the Veteran’s right knee disability warrants: a separate rating under DC 5258 based on swelling, locking and crepitus; a separate rating under DC 5257 for impairment of the knee; and extraschedular consideration for additional functional limitations with repetition during flare-ups. They have pointed to evidence of a March 2009 VA treatment record noting chronic swelling in knee requiring issuance of a knee brace, an April 2009 X-ray report noting questionable right knee joint effusion, and the August 2009 VA examination noting that the Veteran reported weakness, repeated effusions, swelling, and locking. The Board has considered whether the Veteran’s right knee disability warrants any separately compensable rating under any other code, including those suggested by the Veteran and his attorney, but finds that none are warranted. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The record in this case does not reflect either dislocated semilunar cartilage (or any similar meniscus problem) or frequent episodes of “locking” or effusion into the joint. As discussed above, MRI testing has repeatedly revealed minimal cartilage/ meniscal degeneration without meniscal tear, with articular cartilages intact, only having mild degeneration. On August 2009 VA examination, the Veteran was noted to have had no patellar or meniscus abnormality, and on January 2016 and June 2017 VA examinations, he was noted not to have and never to have had a meniscus (semilunar cartilage) condition. The March 2009 record cited by the Veteran’s attorney, rather than noting chronic swelling in knee requiring issuance of a knee brace, reflects that the Veteran presented with chronic knee pain, noting “occasionally knees swell”; he was fitted for a Wrap Around Knee Brace. Also, on August 2009 VA examination—the only time the Veteran reported any episodes of locking – he reported locking episodes “one to two times per year,” not suggesting “frequent episodes” of locking. Furthermore, while the Veteran reported episodes of knee swelling in August 2009 and June 2017, with the June 2017 VA examiner noting intermittent swelling (with none noted at the time of the examination), the record has not reflected frequent episodes of effusion to the knee joint. No current swelling of the knee was noted on any VA examination, and the Veteran was furthermore noted not to have had swelling/effusion to the right knee repeatedly on VA treatment, including in May 2013, May 2014, October 2015, February 2016, April 2016, November 2016, and May 2017. While 2009 X-ray revealed mild degenerative changes and a “questionable” right knee joint effusion, none of the subsequent X-rays or MRIs made any such notation and, again, the record as a whole does not reflect frequent episodes of right knee effusions. Moreover, pain with effusions or swelling, alone, would not be sufficient to warrant a rating under DC 5258 with no dislocated semilunar cartilage and no frequent episodes of “locking.” As noted above, swelling and painful motion are specifically contemplated under a 10 percent rating for limitation of motion due to arthritis (where flexion and extension limitation are not to compensable levels under DCs 5260 and 5251, as here) under DC 5003. While in August 2009, there was a notation that the Veteran had had surgery for a right knee cartilage and ligament tear in 1959, the notation appears to have been a mistake. During the same examination, it was noted that the Veteran reported declining surgery in 1959 when offered. He furthermore denied ever having prior knee surgeries in testimony before the Board in 2012 (for issues not on appeal here), and on June 2017 VA treatment, and the record does not otherwise indicate that any such remote surgery ever occurred. Thus, separate ratings under DC 5258 or 5259 are not warranted. There is likewise no basis for a separate rating under DC 5257 for other impairment of the knee that includes recurrent subluxation or lateral instability, as these symptoms are not reflected in the record. MRI testing has repeatedly revealed no ligament tears of the right knee or other evidence of ligamentous pathology. On August 2009 VA examination, the Veteran reported no giving way, instability, incoordination or episodes of dislocation or subluxation, an on examination had no instability. On January 2016 VA examination, joint stability testing revealed no instability, and there was noted to be no history of lateral insatiability, recurrent subluxation, or right knee giving way, and the Veteran stated that that had not happened for more than 20 years. On June 2017 VA examination, the Veteran reported no history of lateral instability or recurrent subluxation and stability was normal in all testing. Testing on February 2016 treatment was likewise negative for instability on anterior/posterior, varus/valgus instability, and McMurray testing. Neither the Veteran nor his attorney, moreover, has identified any basis for a rating based on instability or recurrent subluxation. Thus, no separate rating under DC 5257 is warranted. Finally, the Board finds that there is no basis for referral to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for additional functional limitations with repetition during flare-ups or any other symptoms or impairment. The Veteran’s right knee DJD disability picture—again, manifested by pain with some flare-ups, tenderness, crepitus and grinding, occasionally antalgic gait, some reduction of flexion strength, use of a knee brace, being limited to standing for 15-30 minutes and walking 1-3 miles, decreased mobility, problems with lifting and carrying, limitations in kneeling and climbing stairs, and limitation of flexion to approximately 100 degrees—is reasonably contemplated by the rating schedule, and approximated in the Veteran’s 10 percent rating for DJD resulting in limitation of flexion to no more than 45 degrees for the reasons discussed extensively above. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). As explained above, the additional functional limitations with repetition during flare-ups—including additional pain, fatigue, weakness, and difficulty with normal use of the knee—is contemplated in this rating, which is again for disability of the level of flexion to no more than 45 degrees, where the Veteran’s flexion has been to approximately 100 degrees throughout the appeal period. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07. The Veteran’s attorney, moreover, while generally asserting that such symptoms warrant extraschedular consideration, has not explained how such symptoms cannot be or are not contemplated in the rating schedule or otherwise constitute the type of “unusual” or “exceptional” factors in a disability that would warrant referral of the claim for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1). Accordingly, an initial rating in excess of 10 percent for right knee DJD must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.