Citation Nr: 1146990 Decision Date: 12/23/11 Archive Date: 12/29/11 DOCKET NO. 05-39 359 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office(RO) in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a right elbow disability, claimed as secondary to the Veteran's service-connected left knee disability. 2. Entitlement to a rating in excess of 10 percent for retro-patellar pain syndrome of the left knee. REPRESENTATION Appellant represented by: Robert A. Embree, Claim Agent ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to February 1996. This appeal to the Board of Veterans' Appeals (Board) arose from January 2005 and August 2005 rating decisions. In the January 2005 rating decision, the RO, inter alia, denied the Veteran's claim for a rating in excess of 10 percent rating for his service-connected left knee disability. In March 2005, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating. A statement of the case (SOC) was issued in November 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2005. In the August 2005 rating decision, the RO denied service connection for right elbow epicondylitis, claimed as secondary to the left knee disability. In December 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2006. In his November 2005 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). However, in a letter received in January 2006, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704(e) (2011). In a February 2008 decision, the Board, inter alia, denied the Veteran's claim for an increased rating for his left knee disability, as well as for service connection for a right elbow disability. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In November 2008, counsel for VA's Secretary and the Veteran's former attorney (the parties) filed a Joint Motion for Partial Remand with the Court. By Order dated later that month, the Court granted the motion, vacating the Board's decision, in part, and remanding the matters on appeal to the Board for further proceedings consistent with the joint motion. In July 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), for further action consistent with the joint motion. After accomplishing further action, the AMC continued to deny each claim (as reflected in a September 2011 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Fort Harrison, Montana, which, via the AMC in Washington, DC, has certified the appeal to the Board. The record reflects that the Veteran was previously represented by the New Hampshire State Veterans Council and a private attorney (D.B.). In April 2010, the Veteran filed a VA Form 21- 22a (Appointment of Individual as Claimant's Representative), in favor of Robert A. Embree, an accredited claim agent. The Board recognizes the change in representation. As a final preliminary matter, the Board again notes that, in the July 2006 substantive appeal, the Veteran appears to raise a claim for service connection for nerve damage in the right arm, and pain in the neck, shoulder, forearm, and wrist, secondary to his service-connected left knee disability. There is no indication in the record that these matters have yet been addressed by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. Although the Veteran has asserted that he injured his right elbow during a fall when his left knee gave way, his assertions in this regard are not deemed credible, and the only competent opinion to address the question of medical etiology of current right elbow disability does not support a finding that there exists a medical relationship any such disability and the Veteran's service-connected left knee disability. 3. Pertinent to the August 2004 claim for increase, the Veteran's service-connected left knee disability is manifested by complaints of pain, subjective instability, and noncompensable limitation of extension and flexion; however, there is no medical finding or other persuasive evidence of left knee ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or impairment of the tibia or fibula, and there is no other significant functional loss associated with the left knee. 4. At no point pertinent to the current claim for increase has the Veteran's left knee disability been shown to be so exceptional or unusual as to warrant a higher rating on an extra-schedular basis. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disability as secondary to the Veteran's service-connected left knee disability are not met. 38 U.S.C.A. §§1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310 (2011). 2. The criteria for a rating in excess of 10 percent for retro-patellar pain syndrome of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an April 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for a right elbow disability secondary to the left knee, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The August 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the April 2005 letter. The Board notes that, in his initial claim for service connection, the Veteran indicated that he had a left elbow injury secondary to the left knee. In the April 2005 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection for a left elbow condition secondary to the left knee. In a statement received later in April 2005, the Veteran indicated that the injured elbow was his right, not his left elbow. While the RO did not issue a new notice letter, informing the Veteran of the information and evidence needed to substantiate his claim for service connection for a right elbow disability, secondary to his left knee, this error is not shown to "affect the essential fairness of the adjudication." See Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007). In this regard, the record reflects that the Veteran understood that, in order to establish service connection for his right elbow disability, he had to show that this disability is related to his service-connected left knee disability. See, e.g., July 2006 substantive appeal ("My left knee did let go in February causing me to fall on right elbow."). Consequently, any error in naming the left elbow in the April 2005 notice letter is "cured by actual knowledge on the part of the claimant." Id. Additionally, in an October 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for service-connected left knee disability, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the October 2004 letter. Post rating, a March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the October 2006 and September 2011 supplemental SOCs (SSOCs) reflect readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of this latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's VA outpatient treatment records, his records from the Social Security Administration (SSA), private treatment records from Androscoggin Valley Hospital and St. Patrick Hospital, and the reports of November 2004 and July 2011 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no further RO action on any of these matters, prior to appellate consideration, is required. In this regard, the Board is satisfied that there has been substantial compliance with its July 2010 remand directives as they pertain to the claims herein decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ secured additional VA treatment records, afforded the Veteran the opportunity to submit any additional evidence pertinent to the claim, and afforded the Veteran VA examinations for the claims on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran does not assert, and the record does not show, that a right knee disability had its onset in, or is otherwise medically-related to service. Rather, the Veteran has consistently asserted that he injured his right elbow when his left knee gave way, causing him to fall. In a May 2005 statement, for example, he specifically asserted that while cleaning a drain outside, his left knee gave way, causing him to fall on ice and land on his right elbow. Under 38 C.F.R. § 3.310(a) (2011), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). [Parenthetically, the Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).] \ Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for secondary service connection for a right elbow disability must be denied. On VA examination in July 2011, the Veteran was diagnosed with age-related arthropathy of the each elbow. Hence, a current disability of the right elbow is medically shown. The question, however, is whether there exists a medical relationship between a current right elbow disability and the service-connected left knee disability. In this regard, the record contains only a negative opinion as to etiology. The claims file contains no competent, credible evidence linking the Veteran's current right elbow disability to service or to his service-connected left knee disability. The July 2011 VA examiner determined that the "elbow condition on the R [right] is clearly not due to, caused by or aggravated by the reported unstable knee on the L [left] in 2003." In explanation, the examiner indicated that 2005 MRI results of the left knee showed no evidence of instability. Anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), collateral ligaments, and menisci were all normal. The examiner explained, "this MRI 2 yrs post claimed instability shows no diagnostic pathology that would suggest or support the fact that he had an unstable L knee in 03." The examiner additionally pointed out that the Veteran's current right elbow disability is similar to his left elbow disability, supporting his finding of "age-consistent" arthropathy. There is no positive medical nexus evidence of record linking the Veteran's current right elbow disability to his service-connected left knee disability. None of the medical records reflecting current diagnoses pertaining to the Veteran's right elbow include any evidence or opinion even suggesting that there exists such a medical nexus, and neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion. In the July 2009 Joint Motion, the parties agreed that the Board's February 2008 analysis was insufficient because it did not specifically discuss the competency, credibility, or probative value of the Veteran's testimony that his knee gave out, resulting in a fall on ice that injured his right elbow. The Board finds the Veteran is competent to state that his left knee gave way, he fell on ice, and his right elbow was injured. As pointed out by the parties in the Joint Motion, the Veteran is competent to testify regarding his personal experience. However, while competent, the Board finds that, in this case, the Veteran's assertions in this regard are not credible. The collective medical record documents that a fall occurred, but is completely devoid of any mention of the Veteran's left knee giving way as the cause of the incident. Additionally, the Veteran's assertions as to the time and circumstances of the fall are inconsistent. In a September 2006 VA treatment note, the Veteran reported falling on ice, but did not mention his left knee. In a May 2006 orthopedic progress note, it was noted that the Veteran had a history of "initial right elbow injury after a fall at work in December 2004 or January 2005." In an October 2005 VA treatment record, the Veteran reported right elbow pain since falling on it at work in late December 2004 or January 2005. In July 2005, the Veteran reported falling on his right elbow at work in the winter of 2005. In a separate July 2005 VA treatment record, it was noted that the Veteran was receiving worker's compensation benefits for his right elbow injury. In a March 2005 VA treatment record, the Veteran again reported receiving worker's compensation benefits for his right elbow injury. In a March 2005 SSA report, the Veteran's right elbow disability was characterized as due to a "work related fall in February 2005." In a January 2004 hospital record from Androscoggin Valley Hospital, the Veteran sought treatment for slipping on ice and landing on his right elbow. The record is devoid of any mention of the left knee. Additionally, as discussed above, the July 2011 VA examiner opined that, as the Veteran's left knee shows, and has shown, no clinical evidence of instability whatsoever, his right elbow disability is "clearly not due to" the incident as alleged. For all of these reasons, the Veteran's statements, while competent, are not credible. As such, they have no probative value. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran's contentions that his left knee gave way and caused his fall are both inconsistent with the medical record and internally inconsistent. See Caluza, 7 Vet. App. 498; Madden v. Gober, 125 F.3d 1477, 1481 (holding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Simply put, the Board has weighed the Veteran's statements and finds his current contentions, made in connection with a claim for benefits, to be of lesser probative value than the collective medical record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). See ; Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board further finds that, to whatever extent the Veteran and/or his representative attempt to establish that there exists a medical relationship between the right elbow disability for which service connection is sought, and the Veteran's service-connected service-connected retro-patellar pain syndrome of the left knee left knee disability on the basis of lay assertions, alone, such attempt must fail. The matter upon which this claim turns is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding, "a layperson is generally not capable of opining on matters requiring medical knowledge.") In other words, the Veteran and his representative simply cannot support these claims, or controvert the existing medical opinion and other probative evidence of record, on the basis of lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for a right elbow disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible and/probative evidence to support the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Historically, by rating action of April 1996, the RO granted service connection for retro-patellar pain syndrome of the left knee and assigned an initial 10 percent rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective February 13, 1996. In August 2004, the Veteran filed his current claim for increased rating. In the January 2005 rating decision, the subject of this appeal, the RO continued the 10 percent rating for retro- patellar syndrome of the left knee. Under Diagnostic Code 5257, other impairment of the knee, such as recurrent subluxation or lateral instability, is rated as 10 percent when slight, 20 percent when moderate, and 30 percent when severe. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, limitation of flexion of either leg to 60 degrees warrants a noncompensable (0 percent) rating. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of either leg to 5 degrees warrants a noncompensable (zero percent) rating. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. A 40 percent rating requires extension limited to 30 degrees. A 50 percent rating requires extension limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Standard knee range of motion is from 0 degrees (extension) to 140 degrees (flexion). See 38 C.F.R. § 4.71, Plate II. The VA General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 10 percent for the Veteran's retro-patellar pain syndrome of the left knee is not warranted at any point pertinent to the August 2004 claim for increase. On VA examination in November 2004, the Veteran reported a history of his left knee arthroscopy and described pain as 10/10 since that surgery. He reported that he felt the left knee's soreness with popping, but denied redness, heat, or swelling. He added that he felt some instability and noted a popping sound that increased the pain on the lateral side of his leg. The Veteran stated that his left knee pain was exacerbated by squatting or lying on his stomach, but that the pain was eased to 5/10 with theragesic cream, although he had no help from a variety of NSAIDs or Tylenol. He described flare-ups in the left knee approximately two times a week, lasting two to three days. He again denied using any canes, crutches, or braces in relation to the left knee, and reported that his left knee made it difficult for him to negotiate stairs. He added that he had lost 2 to 3 jobs in the past due to "inferior work," which the Veteran related to his difficulty with completing his job well while hurting. On examination, the Veteran was able to ambulate at a pretty quick gait, but had a limp on his left knee. He was able to flex the left knee from 0 to 100 degrees, at which point he had pain and had to stop. Passive range of motion was 0 to 140 degrees, but painful, bilaterally. The knee was additionally limited 20 percent by pain when doing repetitive motion. The knee was negative for valgus or varus stretch, McMurray's, Lachman's test, or Drawer tests, but was tender to palpation along the lateral joint lines. The pertinent diagnosis was retro-patellar pain syndrome of the left knee, status post left knee arthroscopic surgery. On VA examination in July 2011, the Veteran's gait was observed closely when he walked to the payment area, as well as down a long hallway to the X-ray department, and was determined to be even. The examiner noted that the Veteran's gait demonstrated coordinated action of the neuromuscular and musculoskeletal systems, and that he was able to sit, stand, and walk safely without postural deviation, falling, or reaching for items for support. His posture was erect and his balance was steady without the use of ambulatory aids or braces. On examination, the left knee appeared normal and aligned. There was no evidence of fatigue, weakness, a lack of endurance, or additional limitation after repetitive use. There was no objective evidence of instability, medial or lateral. There was no weakness, redness, heat, abnormal movement, or guarding of movement. The Veteran complained of pain while lying on the examination table with no movement. He had no muscular atrophy or usual shoe wear pattern which would indicate abnormal weight bearing. Flexion was to 135 degrees and extension was to 0 degrees without pain. Varus and valgus testing in neutral and in 30 degrees of flexion revealed normal motion. McMurray's test was negative. The diagnosis was age-consistent arthropathy of the knee with minimal degenerative changes. The examiner again noted that there was no clinical evidence of instability in the knee. VA and private treatment records dated from August 2003 to July 2011 also offer evidence of the Veteran's symptomatology. In August 2003, the Veteran had no significant swelling or tenderness. His range of motion was "quite functional" with at least full extension through 110 degrees of active flexion. His gait was not antalgic. In July 2004 the Veteran was in no apparent discomfort and walked without a limp. His range of motion was full. The McMurray maneuver was equivocal, but the examiner determined the knee felt stable. The apprehension maneuver was negative. X-rays of the knee in November 2004 revealed minimal degenerative changes. In April 2005, the Veteran reported pain in the knee. He then described occasional sensations of his knee giving out, but reported no falls. Range of motion of the left knee was from 0 to 100 degrees, actively, and from 0 to 120 degrees, passively. There was minimal patellar crepitation with range of motion testing and patellar apprehension test. There was no significant ligamentous instability with stress testing. Ballottement sign and McMurray's tests were negative. Lachman's test was trace in the left knee. The assessment was left knee pain, probably secondary to internal derangement. A June 2005 MRI of the knee revealed post arthroscopy changes with no evidence of an acute abnormality within the knee. During VA treatment in July 2005, the Veteran continued to complain of knee pain, stating that his left knee pain was more bothersome than the right. He stated that his left knee would swell on occasion, but that he had less sensation of his knee giving out. He added that he had a brace for his left knee which he did not find helpful. Range of motion of the left knee was from 0 to 105 degrees, actively, and from 0 to 120 degrees, passively. There was minimal patellar crepitation with range of motion testing and no significant collateral ligament instability. Patellar apprehension sign and ballottement test were negative. Lachman's test was trace on the left. The assessment was left knee pain, probably secondary to patellofemoral syndrome, recent MRI with no findings of internal derangement, some scarring of the Hoffa fat pad from previous arthroscopy was noted. In January 2011, the Veteran displayed a full range of motion. Crepitus was noted, and he was tender to palpation over the medial and lateral meniscus. Anterior drawer testing revealed mild laxity. In May 2011, the Veteran was again tender to palpation. His knee was stable. He had pain in the medial meniscus region with flexion. He ambulated without a limp and had normal patellar tracking. Crepitus was found with range of motion testing. McMuray's testing was unremarkable. In July 2011 it was noted that there had been no significant instability in the left knee. He was able to flex it completely. Collectively, these findings do not warrant assignment of even a compensable rating for the left knee under Diagnostic Code 5260 or 5261. As indicated above, while the Veteran has consistently complained of knee pain, the objective medical evidence demonstrates flexion limited to no less than 100 degrees full extension. As such, motion of the knee has not been limited to the degree necessary to assign a higher or separate rating for the service-connected disability. Given the objective findings of decreased (albeit, noncompensable) left knee flexion, and the Veteran's subjective complaints, the RO has appropriately assigned a 10 percent rating for the knee; however, no higher rating is assignable on the basis of limited motion. Specifically as regards the DeLuca factors (identified and addressed above), the Board notes that the record indicates that pain was associated with the Veteran's range of motion. The November 2004 VA examiner noted that the Veteran's range of motion was additionally limited by 20 percent by pain when doing repetitive motion. However, decreasing the Veteran's flexion on examination by 20 percent would result in flexion limited to 80 degrees on the left, which does not warrant assignment of a compensable rating under Diagnostic Code 5260. The July 2011 VA examiner found that the Veteran's complaints of fatigue, weakness, or a lack of endurance do not limit joint function any further than the range of motion documented. The examiner stated there was no objective or clinical evidence of an additional limitation due to flare-ups beyond the measured and reported ranges. Moreover, as indicated, the criteria under the General Rating Formula are applied with or without symptoms such as pain, and during the various VA examinations, the Veteran was able to accomplish the range of motions indicated above. As such, there is insufficient medical evidence to support that the Veteran's pain, weakness, or fatigability is so disabling as to actually or effectively limit knee motion to such an extent as to warrant assignment of a higher rating under either Diagnostic Code 5260 or 5261. The Board also finds that no higher or additional rating for recurrent subluxation or lateral instability of the left knee under Diagnostic Code 5257 is warranted. In the Joint Motion, the parties agreed that the Board's February 2008 decision contained an insufficient analysis in this regard. Specifically, the parties cited an October 2004 private orthopedic office note in which the examiner found "gross instability" in the Veteran's left knee. The parties also cited the Veteran's contention to the November 2004 examiner that he felt some instability in his left leg and heard a popping sound, and that the examiner noted a limp on the left knee. As regards the objective evidence, despite the October 2004 finding of gross instability and the November 2004 examiner's notation of a left limp, the Board finds that the medical evidence does not support a finding that there is instability of the left knee. The July 2011 VA examiner referenced numerous occasions in which instability was denied or not found. For example, in June 2008, a musculoskeletal examination revealed no gross abnormalities or obvious instability. In May 2011, anterior drawer testing was stable. In July 2011, there was no significant swelling or instability in the knee. Additionally, to the contrary of the November 2004 examiner's notation regarding a limp, the July 2011 examiner highlighted evidence supporting "considerable weight bearing activity." In December 2009 the Veteran reported going for walks in the woods, hunting, biking, and snow shoeing. In January 2010 he stated he can walk for one hour, stand for 30 minutes, and sit for 2 hours. In January 2011 it was noted that the Veteran ambulates with a steady gait. In February 2011 the Veteran stated he has no problems with his gait. In May 2011 he was found to ambulate without a limp. In June 2011 he had no problems with his gait. The examiner concluded, based on a thorough review of the Veteran's medical record and physical examination of the Veteran, that there simply is no clinical evidence of instability of the left knee, medially or laterally. The examiner explained that knee instability means that a ligament has been stretched or torn. Magnetic Resonance Imaging studies of the Veteran's left knee showed that his SCL, PCL, collateral ligaments, and menisci were all normal and there was no evidence of joint effusion. The osseous structures were unremarkable, and cartilaginous surfaces were well preserved. The examiner stated that there was no diagnostic pathology to suggest or support a finding of instability. VA and private treatment records, discussed above, are consistent with a finding of no instability. Treatment records dated in July 2011, May 2011, July 2005, April 2005, July 2004, all provide objective, medical documentation that the Veteran's left knee was not unstable. This evidence, when weighed against the October 2004 treatment record and the Veteran's complaints to the November 2004 VA examiner as cited by the parties in the joint motion, simply does not place the evidence in relative equipoise on the question of whether the evidence supports a finding of instability. While the Veteran's subjective complaints of the sensation of his left knee giving out, documented throughout VA treatment records, have been considered, the criteria for a finding of recurrent subluxation or instability requires medical findings and/or testing results that are within the province of trained medical professionals. See. e.g. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Hence, the lay assertions are not considered more probative than the actual medical findings shown, which, as indicated in this case, does not support the assignment of a higher or separate rating based on instability. For all of these reasons, there is no basis for assignment of either a rating in excess of 10 percent for the left knee under Diagnostic Code 5257, or the assignment of a separate compensable rating for the left knee on the basis of arthritis and instability. See VAOPGCPREC 23-97; VAOPGCPREC 9-98. Furthermore, no other diagnostic code provides a basis for assignment of a rating in excess of 10 percent for the left knee. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263; however, the majority of these diagnostic codes simply do not apply to the Veteran's service-connected knee disabilities. As it is neither contended nor shown that the Veteran's service-connected knee disabilities involve ankylosis, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, there is no basis for assignment of any higher rating under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263. See 38 C.F.R. § 4.71a. Under these circumstances, the Board finds that the record presents no basis for assignment of a higher schedular rating for the left knee under the applicable rating criteria. Additionally, as discussed by the Board in February 2008, the Board finds that there is no showing that the Veteran's service-connected left knee disability reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (cited in the June 2006 SOC and October 2006 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, 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 extra-schedular rating. Thun, supra. Here, the Board finds the applicable schedular criteria appear to be fully adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. The Board cannot find that the rating schedule is impractical in addressing any of the Veteran's symptomatology. In essence, all of the Veteran's symptoms-namely, pain, weakness, instability, fatigue, and limited motion-are contemplated by the diagnostic codes pertaining to the knee and leg, and, as discussed above, have been considered in the assignment of the 10 percent rating. The Board points out that, even if the applicable rating criteria were deemed inadequate to evaluate the left knee, the disability has not objectively been shown to markedly interfere with employment (i.e., beyond that contemplated in the 10 percent rating assigned.) The July 2011 VA examiner determined there are no effects of the condition on the Veteran's usual occupation, as he has not worked since 2005 and did not plan on trying to work. A December 2005 decision from the Social Security Administration reflects a finding that the Veteran was disabled due to the combined conditions of lumbosacral strain, epicondylitis of the left upper extremity, and osteoarthritis of the knees. Further, in a September 2006 statement, the Veteran's physician at the VA hospital in White River Junction indicated that the Veteran was not able to perform his previous job, or to work in other fields, secondary to his right elbow pain and problems-clearly, not the disability at issue. Moreover, there also is no objective evidence that, at any point pertinent to the claim for increase, the left knee disability has warranted frequent treatment-much less periods of hospitalization. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). See also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's retro-patellar pain syndrome of the left knee, pursuant to Hart, and that the claim for a higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a right elbow disability, claimed as secondary to the Veteran's service-connected left knee disability, is denied. A rating in excess of 10 percent for retro-patellar pain syndrome of the left knee is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs