Citation Nr: 21040587
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 16-49 455
DATE: July 6, 2021

ORDER

Entitlement to an initial compensable rating for left knee instability prior to June 27, 2017, and to a rating in excess of 20 percent thereafter, to include consideration of an extraschedular rating, is denied.

Entitlement to a separate rating of 20 percent for left knee dislocated semilunar cartilage from June 27, 2017, is granted.

Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis, to include consideration of an extraschedular rating, is denied.

FINDINGS OF FACT

1. Prior to June 27, 2017, the preponderance of the evidence does not indicate that the Veteran's left knee was manifested by instability; thereafter, the evidence of record indicates that the left knee was manifested by moderate instability. 

2. The evidence of record indicates that from June 27, 2017, the Veteran's left knee was manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion.

3. The evidence of record indicates that the Veteran's left knee disability was manifested by flexion to 40 degrees, at worst, throughout the appellate period. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial compensable rating of left knee instability prior to June 27, 2017, or for a rating in excess of 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257.

2. The criteria for entitlement to a 20 percent rating for left knee dislocated semilunar cartilage from June 27, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5258.

3. The criteria for entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1997 to July 2014.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board remanded the claim in September 2019 for further development by the RO. The case has been returned to the Board for further appellate action.

The Board notes that the December 2014 rating decision granted service connection and an initial 10 percent rating for the Veteran's right knee strain with degenerative arthritis. However, the Veteran contested only the left knee ratings in his September 2015 notice of disagreement (NOD) and October 2016 VA Form 9. As such, a claim for entitlement to an increased rating for the right knee is not before the Board at this time and will not be further discussed.  

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment).

That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 

Under DC 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, with 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 rating is assigned; with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned.

Under DC 5256, knee ankylosis, a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent disability rating; in flexion between 10 and 20 degrees warrants a 40 percent rating; in flexion between 20 and 45 degrees warrants a 50 percent rating; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. 

Under DC 5257, where there is recurrent subluxation, lateral instability, or other impairment of a knee, a 10 percent evaluation may be assigned where the disability is slight, a 20 percent evaluation will be assigned for moderate disability, and a 30 percent for severe disability. 38 C.F.R. § 4.71a.

The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Pursuant to DC 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a.

Under DC 5259, symptomatic residuals of removal of a semilunar cartilage warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a.

The diagnostic codes pertaining to limited motion of the knee are DCs 5260 and 5261. Limited flexion of the knee is rated under DC 5260, which assigns a noncompensable rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees. Id., DC 5260. Limited extension of the knee is rated under DC 5261, which assigns a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees. Id., DC 5261.

VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). 

Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).

Under DC 5262, impairment of the tibia and fibula with malunion, a slight knee or ankle disability warrants a 10 percent rating; a moderate knee or ankle disability warrants a 20 percent rating; and a marked knee or ankle disability warrants a 30 percent rating. A maximum 40 percent rating is warranted when there is nonunion and loose motion requiring a brace. 38 C.F.R. § 4.71a.

Under DC 5263, acquired genu recurvatum with weakness and instability in weight-bearing objectively demonstrated warrants a maximum 10 percent rating. 38 C.F.R. § 4.71a.

Diseased joints may be manifested by crepitation on motion in the tendons or ligaments, or within join structures. 38 C.F.R. § 4.40. Pain, swelling, locking and crepitus may be compensated under the DCs for limited motion, i.e., DCs 5260 and 5261. Lyles v. Shulkin, No. 16-0994, slip op. at 14 (U.S. Vet. App. Nov. 29, 2017) (acknowledging popping and grinding as symptoms of crepitus and that to the extent that crepitus or locking cause disturbance of locomotion, sitting, standing, and weight-bearing they are contemplated under § 4.45(f)).

The Board notes that the versions of DCs 5003, 5257 and 5262 set out above were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The amended versions of these DCs may not be applied prior to the effective date of February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). However, the Board finds it may still apply the prior version of these DCs to the entire period on appeal, as the Board is not prohibited from applying a prior regulation in effect during the pendency of a claim to the period on or after the effective date of the new version of the regulation. Thus, the Board finds that it may still apply the prior version of 38 C.F.R. § 4.71a, DCs 5003, 5257 and 5262 to the period on or after February 7, 2021, which is the effective date of the amended criteria, if this would afford a more favorable outcome. 

1. Entitlement to an initial compensable rating for left knee instability prior to June 27, 2017, and to a rating in excess of 20 percent thereafter

2. Entitlement to a rating of 20 percent for left knee dislocated semilunar cartilage from June 27, 2017

3. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis with limitation of flexion

The Veteran's left knee instability was assigned a 20 percent rating under DCs 5258-5257 from June 27, 2017. The Veteran's left knee meniscal tear with degenerative arthritis was assigned a 10 percent rating under DC 5003-5260 from August 1, 2014. 38 C.F.R. § 4.71a.

Factual background

Turning to the medical evidence of record, the Veteran underwent a VA examination in November 2014. The Veteran reported continued left knee aching. The Veteran also reported flare-ups, namely, knee aches with weather changes, left knee aching with more than 15 minutes of standing; he denied a decreased range of motion. The Veteran reported additional functional loss to include limited standing, walking and repetitive squatting or kneeling. Initial range of motion was noted from 0 to 110 degrees of the left knee. Observed repetitive use did not result in additional functional loss. As for repeated use over time, pain, fatigue and lack of endurance significantly limited functional ability of the left knee; range of motion was noted from 0 to 95 degrees. Flare ups were noted to occur every 2 to 3 months, last 1 to 2 days and were moderate. Muscle strength was noted as normal. As for effusion, the Veteran reported left knee swelling two months prior, which was relieved with rest and ice. Joint stability testing revealed no instability. No recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment were noted. The examiner noted a left meniscal tear and transplant manifested by frequent episodes of pain (daily) and effusion (every 2 to 30 months lasting 1 to 2 days). Occasional use of a brace was noted for the left knee. Additional functional impact was noted for the left knee, namely, standing limited to 15 minutes, a half-mile of walking, and 15 minutes of sitting with no stretching. 

The Veteran underwent a second VA examination in June 2017. The examiner noted that the diagnosis had progressed and noted the Veteran's reports of increased pain, instability, and edema impacting ability to stand, walk, bend, use stairs and ladders, and lift heavy objects. The Veteran reported the condition got worse, to include popping, sharp pains, instability and swelling, all during normal activities. The Veteran reported flare ups, to include such symptoms. The Veteran reported functional loss such as limited motion, inability to kneel on the left, inability to squat or run, and painful walking. Initial range of motion was noted from 0 to 70 on the left. Pain on weight-bearing and crepitus were noted; the left was tender to palpation. Observed repetitive use did not result in additional functional loss. As for repeated use over time, pain, weakness, and lack of endurance significantly limited functional ability; left knee range of motion was noted from 0 to 70 degrees. On flare-ups, this decreased to a range from 0 to 40 on the left. As for additional factors, the examiner noted left knee weakened movement, swelling, instability of station, disturbance of locomotion and interference with sitting/standing. Left knee strength was noted as 4 of 5. No ankylosis was noted. The examiner noted recurrent effusion, namely, his left knee swells daily, especially with standing and walking. Left knee instability was noted. Shin splints were noted and affected range of motion. Symptoms include difficulty walking, running, squatting; weight-bearing caused pain and swelling. The examiner also noted a left side meniscal dislocation, meniscal tear, and frequent episodes of joint locking, pain and effusion. Residuals of his left knee procedures were chronic knee instability, locking, pain and edema on a daily basis. Regular use of a brace was noted for the left knee to support and stabilize during standing, walking and sitting. There was objective evidence of pain on passive motion and non-weight bearing.  

The Veteran underwent a third VA examination in May 2019. The Veteran reported inability to kneel and that he will eventually need total knee replacement. He treats symptoms with medicine and injections. His flares of the left knee occur upon lengthy standing or sitting, and include pain, swelling and popping. As for reported functional loss, the Veteran reported inability to squat or kneel for more than 15 minutes or use more than one flight of stairs. Walking more than 30 minutes causes pain. He is unable to run and exercising is difficult. Left knee initial range of motion was noted from 0 to 120 degrees. There was pain on weight-bearing, crepitus, and moderate tenderness or pain on palpation. Observed repetitive use did not result in additional functional loss. As for repeated use over time, pain and weakness significantly limited functional ability; left knee range of motion was noted as 0 to 120 degrees. As for flare-ups, pain, fatigue, weakness, and lack of endurance was noted from 0 to 40 degrees. Additional contributing factors were noted as weakened movement, swelling, instability of station, disturbance of locomotion, and interference with sitting/standing. Muscle strength was noted as 4 of 5. No ankylosis was noted. A history of slight lateral subluxation and instability was noted. Recurrent effusion was noted to occur once to thrice per week. Joint stability testing revealed left knee instability; namely, more than 2 millimeters of anterior instability. Shin splints were noted, which affected range of motion and caused pain and tenderness of the shins. No patellar dislocation, stress fracture, or genu recurvatum were noted. On the left side, the examiner noted a meniscal dislocation and meniscal tear, symptoms were noted as frequent episodes of locking, pain and effusion. Regular use of a brace was noted for support and stability to stand and walk. There was objective evidence of pain on passive motion and non-weight bearing.  

The Board remanded the claim in September 2019 to obtain a VA examination compliant with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016).

The Veteran underwent a third VA examination in December 2019. The Veteran reported worsening pain; left knee pain is constant and gets worse with weather changes or excessive standing or walking. He treats his symptoms with ibuprofen as needed. The Veteran reported no flare-ups. As for functional loss, the Veteran reported that he cannot walk for long periods of time. Left knee initial range of motion was noted from 0 to 90 degrees. There was evidence of pain with weight bearing and crepitus. Observed repetitive use did not result in additional functional loss. As for repeated use over time, pain significantly limits functional ability; range of motion was noted from 5 to 85 degrees. No additional contributing factors were noted. Muscle strength was noted as normal. No ankylosis was noted. His left knee swells if he is on his feet excessively. No joint instability was noted upon testing. No recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment were noted. A left side meniscal tear with frequent episodes of joint pain and effusion were noted. Constant pain was noted; pain and swelling are worse with walking or standing. Residuals of his procedures were noted as pain, swelling, and decreased mobility. No assistive devices were noted. Functional impact was noted as an inability to kneel, squat or climb ladders, or to stand or walk for long periods. Passive range of motion and active range of motion were noted to be the same.

Turning to the lay evidence of record, the Veteran submitted a July 2017 statement requesting a rating from 40 to 70 percent of his left knee. The lack of cartilage in his left knee causes constant rubbing and he has continual pain and weakness. Moreover, he has popping and is in pain upon bending. He will need a total knee replacement.  

Left knee instability under DC 5257

On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned initial noncompensable rating for left knee instability prior to June 27, 2017 and the 20 percent rating thereafter. Prior to June 27, 2017, the record shows that the Veteran had normal muscle strength, used a brace only occasionally, and that stability testing showed no instability. Among the reported symptoms in the November 2014 VA examination, the Veteran did not instability. Considering the law and medical evidence for this period, the evidence weighs against a finding of instability. Therefore, the preponderance of evidence does not show that a compensable rating is warranted.  

From June 27, 2017, the record shows that the Veteran had instability which manifested, at worst, more than 2 millimeters of anterior instability. See May 2019 VA examination. This is consistent with a 20 percent rating for moderate instability. The Board does not find that a higher disability rating is warranted. The June 2017 VA examination notes that the Veteran reported instability. The examiner noted instability of station and chronic left knee instability. Knee strength was reduced to 4 of 5. Regular use of a brace was noted to assist with stability. Thus, while instability was clearly present, neither the Veteran nor the examiner indicated nor made findings that such instability was to a severe degree. See English v. Wilkie, 30 Vet. App. 347 (2018). The May 2019 VA examination noted instability of station and a history of slight lateral subluxation and instability, as well as regular use of a brace. The December 2019 VA examination noted no instability and noted normal muscle strength; the Veteran reported no symptoms associated with instability. Thus, the maximum 30 percent rating under DC 5257 is not warranted.

Left knee dislocated semilunar cartilage under DC 5258

On review of the record, the Board finds that the disability picture presented more accurately reflects that a separate rating of 20 percent is warranted for left knee dislocated semilunar cartilage under DC 5758. The June 2017 and May 2019 VA examinations noted a left knee meniscal dislocation with frequent episodes of "locking," pain, and effusion. Thus, a separate rating under DC 5258 is warranted.  This the maximum rating available under this diagnostic code.

Under the facts and procedural history of the appeal, the effective date of June 27, 2017, is assigned. 38 C.F.R. § 3.400. The Board notes that the presence of dislocated semilunar cartilage with related symptomatology was first identified in the VA examination of June 27, 2017; this is the earliest evidence of record showing the presence of such symptomatology. 

Left knee limited flexion under DC 5003-5260

On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned 10 percent rating under DC 5003-5260. The record shows that, at worst, the Veteran's left knee flexion was limited to 40 degrees. See May 2019 VA examination. The Board does not find that a higher disability rating is warranted in the absence of range of motion measurements approximating 30 degrees or higher. Additionally, the presence of limitation of motion precludes a higher rating under DC 5003. 

The Board has considered whether any higher ratings would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board finds that the assigned rating adequately contemplates the Veteran's disability picture to include functional impairment and loss. The Board acknowledges the evidence of record indicating functional loss, as set out in detail above, which includes limitations in lifting, walking, squatting, standing, exercising, weakness, and lack of endurance. However, the multiple range of motion tests of record do not contain any indication that the Veteran's motion is so limited as to warrant the next higher rating. 

The Board has considered the Veteran's lay statements regarding the functional impact of his knee condition in VA examination reports and his submissions. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, his statements are consistent with the evidence of record and the rating assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the evidence of record.

To the extent that the Veteran argues his symptomatology is more severe than that shown during the VA examinations and in treatment records, his statements must be weighed against the other evidence of record, and the specific examination findings of trained health care professionals are of greater probative weight than more general lay assertions.

The Board further finds additional ratings for the Veteran's left knee disability are not warranted. A rating under DC 5256 is not warranted as there is no evidence of ankylosis. There is no evidence that the Veteran's range of motion in extension was limited to 10 degrees or more to warrant a compensable rating under DC 5261. There is no evidence of tibia and fibula impairment to warrant a rating under DC 5262. Additionally, there is no evidence of genu recurvatum to warrant a rating under DC 5263.

The amended versions of DCs 5003, 5257 and 5262, effective February 7, 2021, would not afford the Veteran greater relief. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Due to the presence of limitation of motion, a higher rating under DC 5003 is not available. Regarding DC 5257, the record does not show that the Veteran has a prescription by a medical provider for both a brace and an assistive device such that would warrant the highest rating. The Veteran is not noted to have any impairment under DC 5262. 

The Board notes that the amendments to DC 5262 added criteria for the presence of shin splints. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Here, the VA examination reports of June 2017 and May 2017 show the presence of shin splints. However, the record does not indicate treatment for no less than 12 consecutive months or unresponsiveness to treatment. The subsequent VA examination in December 2019 did not show shin splints. Additionally, the June 2017 and May 2017 VA examiners noted that the shin splints affect the Veteran's range of motion; these measurements were captured in the relevant portions of the respective examinations and any additional ratings for such symptoms would be duplicative. See 38 C.F.R. § 4.14.

The Board also notes that the Veteran currently has a non-compensable rating under DC 7805 for a left knee scar. In his July 2017 statement, the Veteran contended that he should be awarded a 10 percent rating for his scar. The Board notes that the scar was not explicitly included in the Veteran's NOD or VA Form 9. As such, this issue is not properly before the Board at this time. 

Extraschedular consideration

Lastly, the Veteran's representative has contended that the Veteran is entitled to extraschedular consideration. See October 2020 appellate brief. 

An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization render the application of the regular schedular standards impracticable. 38 C.F.R. § 3.321(b)(1).

Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

Turning to the first step of the extraschedular analysis, the Veteran contends that he has pain, swelling, popping, limited mobility, and instability. The Veteran's disabilities limit his ability to bend, run, kneel, squat, lift heavy loads, and walk or stand for prolonged period of time. He also has difficulty exercising. The aforementioned functional impairments, however, have been considered by the Board and are contemplated under the schedular rating criteria. In other words, the rating criteria contemplates pain, limitation of motion, and meniscal conditions. See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca, 8 Vet. App. at 206-07. Therefore, the Board finds that the record does not reflect that the Veteran's disabilities are exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extraschedular basis.

Thus, the Board finds that the available schedular evaluation is adequate to fully compensate the Veteran. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19. Therefore, extraschedular consideration is not warranted.

In conclusion, the Board finds that an initial compensable disability rating for the Veteran's left knee instability is not warranted prior to June 27, 2017, and a rating in excess of the currently assigned 20 percent rating is not warranted thereafter. A 20 percent rating is warranted for left knee dislocated semilunar cartilage from June 27, 2017. An initial rating in excess of 10 percent is not warranted for left knee limitation of flexion. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Minaya, Associate 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.