Citation Nr: 1103333 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 08-04 367 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for the service-connected residuals of a torn medial meniscus of the right knee on the basis of degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected left knee disability on the basis of degenerative joint disease. 3. Entitlement to an initial rating in excess of 20 percent for the service-connected residuals of a torn medial meniscus of the right knee on the basis of instability. 4. Entitlement to an initial rating in excess of 10 percent for the service-connected left knee disability on the basis of instability. 5. Entitlement to a total disability rating based upon individual unemployability by reason of service-connected disability (TDIU), to include extraschedular consideration under 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to February 1969, during the Vietnam Era. These matters initially come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO. By way of a July 2007 rating decision, the RO granted service connection for residuals of a torn medial meniscus of the right knee based on degenerative arthritis and assigned an evaluation of 10 percent disabling, effective on February 13, 2007 (date of claim). The RO also granted service connection for degenerative arthritis of the left knee and assigned an evaluation of 10 percent disabling, effective on February 13, 2007. In a June 2008 rating decision, the RO assigned a 20 percent rating for the service-connected residuals of a torn medial meniscus of the right knee on the basis of instability, effective on May 8, 2008. In an August 2008 rating decision, the RO denied the Veteran's claim for a TDIU rating. By way of a March 2010 rating decision, the RO assigned an increased rating of 10 percent for the service-connected left knee disability on the basis of instability, effective on July 14, 2009. In a July 2010 administrative decision, the Veteran was denied extraschedular consideration under 38 C.F.R. § 4.16 (b). In November 2008, the Veteran had testified at a personal hearing held at the RO, and in September 2010, the Veteran testified at a videoconference hearing from the RO before the undersigned Veterans Law Judge. Transcripts of these hearings are associated with the claims file. The issue of entitlement to a TDIU rating is being remanded to the RO via the Appeals Management Center (AMC) for additional development of the record. FINDINGS OF FACT 1. The service-connected right knee degenerative joint disease currently is shown to be manifested by complaints of pain, stiffness, giving way, locking and swelling and to be productive of a disability picture that more closely approximates that of extension restricted to 10 degrees and flexion restricted to 45 degrees based on functional loss due to pain; more than moderate instability or recurrent subluxation is not demonstrated. 2. The service-connected left knee degenerative joint disease currently is shown to be manifested by complaints of pain, stiffness, giving way, locking and swelling and to be productive of a disability picture that more closely approximates that of extension restricted to 10 degrees and flexion restricted to 45 degrees based on functional loss due to pain; more than slight instability or recurrent subluxation is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected residuals of a torn medial meniscus of the right knee with degenerative joint disease on the basis of limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a including Diagnostic Codes 5003, 5010, 5260, 5261 (2010). 2. The criteria for the assignment of a rating of 10 percent, but not more for the service-connected residuals of a torn medical meniscus of the right knee with degenerative joint disease on the basis of limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a including Diagnostic Codes 5003, 5010, 5260, 5261 (2010). 3. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected left knee degenerative joint disease on the basis of limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a including Diagnostic Codes 5003, 5010, 5260, 5261 (2010). 4. The criteria for the assignment of a rating of 10 percent, but not more for the service-connected left knee degenerative joint disease of the basis of limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.17a including Diagnostic Codes 5003, 5010, 5260, 5261 2010). 5. The criteria for an initial rating in excess of 20 percent for the service-connected residuals of a torn medial meniscus of the right knee with degenerative joint disease on the basis of instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a including Diagnostic Codes 5257 (2010). 6. The criteria for an initial rating in excess of 10 percent for the service-connected left knee degenerative joint disease on the basis of instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a including Diagnostic Codes 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. VCAA notice consistent with 38 U.S.C.A. § 5103(a) (2002) and 38 C.F.R. § 3.159(b) (2010) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. The Board notes that a "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b)(1) (2010). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veteran was provided notice of the VCAA in February 2007 prior to the initial adjudication of his claims in a July 2007 rating decision. He received an additional letter in September 2008. The VCAA letters indicated the types of evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain both his private and VA medical treatment records. The Veteran also received notice pertaining to the downstream disability rating and effective date elements of the claims, with subsequent adjudication of his claims in a July 2010 Supplemental Statement of the Case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Moreover, it is well to observe that service connection for his knee disabilities have been established and initial ratings for these conditions have been assigned. Thus, the Veteran has been awarded the benefit sought, and such claims have been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490- 491. As such, 38 U.S.C.A. § 5103(a) (2002) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. It is of controlling significance that, after awarding the Veteran service connection and assigning an initial disability rating for each of these conditions, he filed a notice of disagreement contesting the initial rating determinations. See 73 Fed. Reg. 23353-23356 (April 30, 2008) (amending 38 C.F.R. § 3.159(b) to add subparagraph (3), which provides VA has no duty to provide section 5103 notice upon receipt of a notice of disagreement). The RO provided the Veteran with a Statement of the Case that addressed the initial ratings assigned, included notice of the criteria for higher ratings for those conditions, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Further, the Veteran testified at a hearing that focused on the elements necessary to substantiate his increased rating claims and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2010) and that the Board can adjudicate the claim based on the current record. The Veteran was afforded VA examinations in May 2007, May 2008, November 2009 and May 2010. These examinations are adequate for rating purposes. The Board otherwise concludes that all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes the service treatment records, the VA medical records, the VA examination reports, and the statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2010). II. A Higher Initial Rating for Bilateral Knees Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2010). 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 (2010). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2010). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 38 C.F.R. § 4.40 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2010). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2010), however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2010). For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2010). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The criteria for rating traumatic arthritis in Diagnostic Code 5010 direct that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The 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, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2010). It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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 (2010). A claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and that evaluation of a knee disability under both of these codes would not amount to pyramiding. However, a separate rating must be based on additional compensable disability. 38 C.F.R. § 4.14 (2010). VAOPGCPREC 23- 97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A noncompensable rating is warranted for knee flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A noncompensable rating is warranted for knee extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The VA treatment records dating from November 2002 to November 2004 reflect no complaints of chronic of knee discomfort. In December 2003, the Veteran reported that he did not need assistance with activities of daily living or have any decrease or loss of mobility within the past month. A November 2004 private treatment record noted that the Veteran jogged on a weekly basis, but that his knee pain had gradually worsened. He received cortisone injections with minimal relief. He complained of locking and catching type symptoms and difficulty arising from a chair. Upon examination, the Veteran walked with a mildly antalgic gait. His right knee had significant crepitus with range of motion and significant medial joint like tenderness. He had a positive McMurray sign. There was no instability to varus and valgus stress testing. His strength was 5/5. His left knee was within normal limits. He had mild swelling of the right knee. A November 2004 X-ray study showed sclerosis and narrowing joint space of the right knee. There were osteophytes and a possible loose body. There was also a squaring of the condyles consistent with previous surgery (arthroscopy) in 1991. He was diagnosed with right knee mechanical symptoms consistent with a meniscal tear. It was also noted that the Veteran had some underlying degenerative joint disease. A November 2004 VA treatment record noted that the Veteran was not jogging, but walking for exercise. He was assessed with mild to moderate degenerative changes likely with an acute flare. It was also noted that the meniscal tear did not appear symptomatic. The VA treatment records dating from December 2004 to January 2007 reflect complaints of chronic discomfort of the knees and swelling of the right knee. A January 2007 private treatment record reflects a worsening right knee degenerative joint disease. The Veteran complained that his right knee pain was a 6/10 (10 being the worse). He attempted to run for physical fitness. Upon examination, the Veteran walked with a normal gait and had normal range of motion. The Veteran underwent a VA examination in May 2007. The VA examiner reviewed the claims file, to include VA and private treatment records. The Veteran reported having chronic daily pain, stiffness and swelling. He denied having weakness, instability, locking, flare-up joint disease with incapacitation, subluxation or dislocation or using assistive/corrective devices. The Veteran was self-employed as a plumbing/heating contractor and reported that ascending and descending steps aggravated his knee pain. Upon examination, he had painful motion, tenderness, effusion, guarding and abnormal movement. There was no instability or weakness. The range of motion for the right knee consisted of 5 to 10 degrees from full extension; flexion was to 75 to 80 degrees; varus motion was to 5 degrees with no valgus motion. Drawer and McMurray's tests for the right knee were negative. The range of motion for the left knee consisted of 5 to 10 degrees from full extension; flexion was to 90 to 95 degrees; there was no valgus and valrus motion. Drawer and McMurray's tests of the left knee were negative. The VA examiner found no clinical evidence that either knee range of motion was limited by pain, fatigue, weakness or lack of endurance following repetitive use. The X-ray studies revealed osteoarthritic changes in both knees. The Veteran was diagnosed with residual trauma to both knees due to a motorcycle accident in service; residuals, torn medial meniscus; residuals, partial medial meiscectomy of the right knee; degenerative arthritis of both knees. In January 2008, the Veteran complained of weakness, pain, lack of endurance and fatigue after repetitive use. The Veteran was afforded another VA examination in May 2008 and reported having no history of hospitalization. He denied the use of any aids to assist with walking, constitutional symptoms of arthritis or incapacitating episodes of arthritis, but complained of functional limitations on standing and walking. He reported that he was unable to walk for more than a few yards. There was no joint deformity, giving way, flare-ups, dislocation or subluxation or weakness. However, there was instability, pain, stiffness, ataxic gait/poor propulsion, effusion, locking episodes and inflammation. Upon examination, there was evidence of abnormal weight bearing (increased wear outside edge of heel). His range of motion for the right knee was that of flexion from 0 to 95 degrees with pain and extension from of 95 to 0 degrees. His range of motion for the left knee was that of flexion from 0 to 90 degrees and extension from 90 to 0 degrees. There was no additional limitation on repetitive use, inflammatory arthritis or joint ankylosis. However, there was crepitus, tenderness, clicks or snaps, moderate instability and painful movement. Anterior/posterior cruciate and collateral ligament stability was normal. The X-ray studies revealed moderate degenerative changes in both knees when compared to May 2007 X-ray and a mild interval increase in the degenerative changes in the left knee. The Veteran was diagnosed with torn medial meniscus right knee/degenerative joint disease right and left knees. There were noted to be severe effects on daily living activities of chores, shopping and exercise; mild effects on traveling, bathing and toileting; and no effects on grooming and dressing. The VA treatment records dated from February 2007 to October 2008 reflect complaints of chronic discomfort of both knees and swelling of the right knee. He reported having intermittent pain that was worse during cold weather. The Veteran had knee supports, but found them cumbersome. (See July 2007 VA treatment record). A March 2009 private treatment record reflects that the Veteran complained of severe bilateral knee pain. He could not climb ladders, kneel or lift heavy objects and had difficulty walking up and down stairs. He had to stop working because of his knees. He further stated that he wore braces with minimal improvement. Upon examination, the Veteran walked with a "very hesitant" gait pattern favoring the left. Both knees showed severe arthritic deformities. There were large effusions, diffuse tenderness and limited motion. His bilateral knee motion was that of approximately from 5 to 90 degrees with pain. There was patellofemoral crepitus. The X-ray studies showed advanced arthritic changes tricompartmentally with complete collapse of the joint space laterally on the right and medially on the left tricompartmentally. He was diagnosed with end-stage degenerative joint disease of the bilateral knees. The private physician recommended total knee replacement. A July 2009 private treatment record reflects that the Veteran could walk three to four miles without stopping, albeit, with pain. He complained of giving way, aching, clicking, sharp pain and swelling. He could not kneel, climb steps, carry anything or work off a ladder. Upon examination, there was tenderness, crepitus and range of motion was "really" limited in both knees from 10 to 90 degrees. His right knee had some sloppiness to the Lachman's test. The X-ray studies revealed findings of severe degenerative joint disease. He was diagnosed with the same. A total knee replacement was recommended. During a July 2009 DRO hearing, the Veteran testified about becoming too disabled to work his plumbing business in 2007. He also reported that his knees locked-up. He also reported applying only for Social Security benefits on the basis of age because he was self-employed and did not qualify for disability. In November 2009, the Veteran underwent another VA examination. There was giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, weekly flare-ups of joint disease, effusion and locking episodes; but no deformity, incoordination, or episodes of dislocation or subluxation. Significantly, the Veteran was unable to stand for more than a few minutes and unable to walk more than a few yards. He used a brace. His gait was antalgic with abnormal shoe-wear pattern. The VA examiner found bony joint enlargement, crepitus, tenderness, pain at rest, instability, weakness, grinding and crepitation. There was normal anterior/posterior cruciate and collateral ligament stability with normal flexion. Flexion for the right knee ranged from 10 degrees to 80, 85 and 90 degrees with normal extension. His flexion for the left knee ranged from ranged from 10 degrees to 90 degrees with normal extension. There was no additional limitation with repetitive motion or ankylosis. The X-ray studies revealed bilateral moderate degenerative changes on medial aspect of joint space slightly worse on left than the right with mild degenerative changes. The Veteran was diagnosed with bilateral knee degenerative joint disease/traumatic arthritis with a history of torn meniscus and arthroscopy. There were severe effects on daily activities such as chores, shopping, recreation, with moderate effects on traveling and mild effects with bathing, dressing, toileting, and grooming. His disability prevented exercise and sports. A May 2010 VA treatment record reflects that the Veteran suffered from chronic knee pain and was contemplating knee replacements and considered new knee braces. At a September 2010 videoconference hearing, the Veteran testified that he could no longer work as a plumber because of his knee disabilities. He further testified that he was waiting to have knee replacement surgery. Traumatic Arthritis of the Right and Left Knee A careful review of the record shows that the Veteran currently is suffering from significant degenerative joint disease of each knee with recent findings of pain, stiffness, effusion, instability, giving way and locking. Beginning with the May 2007 VA examination, the service-connected bilateral knee disability is shown to have been manifested by an actual restriction of full extension. As such, the current level of functional loss due to pain, in the Board's opinion, is shown to more nearly resemble that of extension restricted to 10 degrees. Hence, on this record, a separate rating of 10 percent is assignable for each knee based on limitation of extension beginning in May 2007. In addition, the Board finds that the overall bilateral knee disability picture currently is shown to be manifested by functional limitation due to pain that more nearly approaches that of flexion restricted to 45 degrees due to the progressively worsening degenerative joint disease. This level of functional loss would not equate to a rating in excess of the currently assigned 10 percent for either knee. Accordingly, on this record, an increased rating higher than 10 percent for the service-connected bilateral knee disability on the basis of limitation of flexion is not warranted. Additionally, the medical evidence does not demonstrate any ankylosis (Diagnostic Code 5256), removal of semilunar cartilage (Diagnostic Code 5258), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263) that would warrant the assignment of a higher or separate rating for either service-connected knee disability. Therefore, these diagnostic codes cannot be favorable applied in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). In addition, the service-connected bilateral knee disability picture is not found to be unusual or exceptional so as to warrant consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321 (2010). As outlined by the Court of Appeals for Veterans Claims, the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, as the Veteran's symptoms of functional loss and instability are addressed by the applicable rating criteria, the initial requirement of the Thun analysis is not met, ending the Board's inquiry. Instability of the Right and Left Knee The record does not present a basis for finding any recurrent subluxation or instability of either knee prior to May 9, 2008. In fact, a May 2007 VA examination showed no instability of the knees. The medical evidence has shown that the Veteran walked with an antalgic gait and used a knee brace. However, a May 2008 VA examination reported moderate instability of the right knee, but found no instability of the left knee. Consequently, the criteria for higher ratings for either knee under Diagnostic Code 5257 are not met. Moreover, to the extent that the Veteran experiences giving way or locking of either knee, the medical evidence does not show that these manifestations or another disabling factors would warrant a higher rating on the basis of instability or recurrent subluxation in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. The Veteran's disability is not shown to be no more than 10 percent disabling for the left knee and 20 percent disabling for the right knee for the entire appeal period. Hence, his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to the bilateral knee disability since that date of the claim. Fenderson, supra. In summary, the Veteran is not shown to suffer from more than slight instability or recurrent subluxation of the left knee or more than moderate instability or recurrent subluxation of the right knee at any time during period of the appeal. Accordingly, on this record, the Board finds that the criteria for a higher rating on the basis of instability have not been met. ORDER An initial rating in excess of 10 percent for the service- connected torn medial meniscus of the right knee with degenerative joint disease on the basis of limitation of flexion is denied. An increased rating of 10 percent, but not higher for the service-connected torn medial meniscus of the right knee with degenerative joint disease on the basis of limitation of extension is granted, subject to the regulations controlling disbursement of VA monetary benefits. An initial rating in excess of 10 percent for the service- connected degenerative joint disease of the left knee of basis of limitation of flexion is denied. An increased rating of 10 percent, but not higher for the service-connected degenerative joint disease of the left knee on the basis of limitation of extension is granted, subject to the regulations controlling disbursement of VA monetary benefits. An initial rating in excess of 20 percent for the service- connected residuals of a torn medial meniscus of the right knee with degenerative joint disease on the basis of instability is denied. An initial rating in excess of 10 percent for the service- connected left knee degenerative joint disease on the basis of instability is denied. REMAND In a July 2010 administrative decision, the Director of the Compensation and Pension Service determined that the Veteran was not entitled to a TDIU rating on an extraschedular basis. In making this determination, the Director noted the Veteran's statement that he could not continue his plumbing business due to his knee disabilities and that he last worked in December 2007 and was in receipt of Social Security Administration retirement benefits. He also discussed in detail a March 2009 report of evaluation; Dr. H. S.'s report; a November 2009 VA examination, as well as the Veteran's statements and testimony. However, in light of the favorable action taken hereinabove, the Board finds that additional development is necessary to fully address the Veteran's claim for a TDIU rating in light of any significant change in the Veteran's combined rating. Accordingly, this remaining matter is remanded to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to obtain any outstanding medical evidence dealing with treatment or evaluation of his service- connected disabilities. The RO also should notify the Veteran that he may submit additional evidence to support his claim for a TDIU rating. 2. The RO also should schedule the Veteran for a VA examination in order to ascertain the current nature and severity of the service-connected bilateral knee disabilities. The claims folder should be made available to the examiner for review. Any indicated testing should be performed in this regard. Based on his/her review of the case, the VA examiner should opine as to whether the service-connected bilateral knee disabilities at least as likely as not preclude the Veteran from securing and following substantially gainful employment consistent with his educational background and work experience. 3. After completing the requested action, and any additional notification and/or development deemed appropriate, the RO should readjudicate the claim for a TDIU rating in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative with a fully responsive SSOC that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them with an appropriate opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs