Citation Nr: 1134812 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-30 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for a lumbosacral strain to include with degenerative joint disease, post-operative interbody fusion L4-5 and L5-S1. 2. Entitlement to a disability rating in excess of 10 percent for right knee instability, status post-arthroscopy and partial synovectomy. 3. Entitlement to a disability rating in excess of 10 percent for left knee instability, status post-meniscectomy. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from January 1977 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, reducing the disability ratings for instability of the right knee and the left knee from 10 percent to 0 percent, and an August 2005 rating decision of the RO in Seattle, Washington, denying the Veteran's claim of entitlement to a disability rating in excess of 60 percent for his lumbar spine disability. These claims were previously remanded by the Board in January 2010 for additional evidentiary development. The Veteran additionally alleges that he cannot work as a result of his knee disabilities. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU). And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. The Veteran's low back disorder is manifested by pain and limitation of motion; it is not manifested by unfavorable ankylosis of the entire spine. 2. The Veteran suffers from left lower extremity radiculopathy manifested by diminished reflexes and subjective symptoms of pain, numbness and weakness. 3. The Veteran suffers from right lower extremity radiculopathy manifested by diminished reflexes and subjective symptoms of pain, numbness and weakness. 4. The Veteran does not suffer from recurrent subluxation or lateral instability of the left knee. 5. The Veteran does not suffer from recurrent subluxation or lateral instability of the right knee. 6. The Veteran has been unable to follow a substantially gainful occupation due to his service-connected disabilities since February 13, 2010. CONCLUSIONS OF LAW 1. The criteria for establishing a disability evaluation in excess of 60 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 (2010). 2. The criteria for establishing a separate disability evaluation of 10 percent for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2010). 3. The criteria for establishing a separate disability evaluation of 10 percent for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2010). 4. The criteria for establishing a compensable disability evaluation for instability of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5257(2010). 5. The criteria for establishing a compensable disability evaluation for instability of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5257(2010). 6. The criteria for a total disability evaluation based on individual unemployability due to service-connected disabilities, as of February 13, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Letters sent to the Veteran in February 2005, June 2005 and September 2006 provided him with the necessary notice. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. Also, the Veteran received VA medical examinations in July 2005, May 2007 and February 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its January 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the Veteran for medical examinations and that he attended these examinations. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). (CONTINUED ON NEXT PAGE) Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Low Back Disability The Veteran contends that he is entitled to a disability rating in excess of 60 percent for his service-connected lumbosacral strain to include with degenerative disc disease, post-operative interbody fusion L4-5 and L5-S1 (hereinafter a "low back disability"). However, as outlined below, the preponderance of the evidence of record demonstrates that this disability has been no more than 60 percent disabling at any time during the pendency of the Veteran's claim. For historical purposes, the Veteran was originally granted service connection for a low back disability in an August 1989 rating decision. A 10 percent disability evaluation was assigned, effective as of March 3, 1989. The Veteran's disability evaluation was subsequently increased to 60 percent in a May 2001 rating decision. In May 2005, VA received the Veteran's claim for an increased disability evaluation. This claim was denied by the RO in an August 2005 rating decision. VA received a timely notice of disagreement to this decision in December 2005, and the Veteran appealed this decision to the Board in September 2006. The Board previously remanded the Veteran's claims in January 2010 for additional evidentiary development. Upon filing his claim for an increased disability evaluation, the Veteran was afforded a VA examination of the spine in July 2005. It was noted that the Veteran underwent a laminectomy in 2001 with no relief of his symptoms. The Veteran reported that his symptoms increased in severity about two months earlier and that the pain radiated to both legs. He also described constant numbness and tingling of the left leg with weakness. There was no bowel or bladder impairment, however. The Veteran also noted that during flare-ups, he could not drive and he needed help getting up from a sitting position or putting on his socks. However, he was noted to still be working full-time. The Veteran used a cane to assist with ambulation and a back support made of elastic material with metal stiffeners in the back. The examiner noted that the Veteran was independent in his activities of daily living. Examination revealed flattening of the lumbar curvature. There was no paraspinal muscle spasm. Range of motion testing revealed forward flexion to 30 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 30 degrees, left lateral rotation to 20 degrees and right lateral rotation to 30 degrees. There was no additional limitation of motion after three repetitions but his movement was jerky. Sensory was diminished to light touch and pin sensation on the left leg and the left leg was smaller by one centimeter (cm) calf circumference. Knee jerks and ankle jerks were absent. The examiner diagnosed the Veteran with a failed laminectomy, bilateral decompression laminectomy and spinal rodding. According to a November 2005 VA surgical note, the Veteran suffered from chronic low back pain. This was noted to be pain originating from the L3-4 disc with annular tears. An October 2006 CT scan revealed the Veteran to be status post L4 through S1 posterior spinal fusion with bilateral rods and pedicle screws. Lumbar alignment and vertebral height were deemed to be normal. The Veteran was afforded an additional VA examination of the spine in May 2007. The Veteran denied symptoms of numbness, leg or foot weakness, or bowel or bladder impairment. However, the Veteran did endorse symptoms of pain, fatigue, decreased motion, stiffness, and weakness of the spine. Specifically, the Veteran described constant and severe midline back pain with radiation of pain to both lower extremities. The Veteran also reported severe weekly flare-ups lasting for hours resulting in pain, stiffness, decreased mobility and avoidance of movement. Examination revealed the Veteran's posture to be fixed in the flexed position. The Veteran had an apprehensive gait with no abnormal spinal curvature. Neurological evaluation of the lower extremities was normal, aside from hypoactive ankle jerk and knee jerk reflexes bilaterally. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees and bilateral lateral rotation to 10 degrees. There was objective evidence of pain upon motion. The examiner diagnosed the Veteran with degenerative arthritis and disc disease of the spine. According to a June 2007 magnetic resonance image (MRI), the Veteran was status post L4 through S1 posterior spine fixation. Postoperative changes were noted, but there was no significant central canal stenosis. There was broad based disc bulging with a central disc herniation at the L3-4 level, causing moderate to severe central canal stenosis. The record also contains a private MRI performed in June 2009. This revealed residuals of an operation to fuse the L4 and L5 vertebra and a decompression laminectomy. There was also serous-type fluid accumulating posterior to the dural sac from the L4 vertebra to the S2 vertebra. The Veteran was most recently afforded a VA examination of the spine in February 2010. The Veteran described progressive pain, stiffness and radicular symptomatology. The Veteran denied any bowel or bladder impairment, but he did report numbness, paresthesias, and weakness of the bilateral lower extremities. He also reported fatigue, decreased motion, stiffness, weakness, spasms and pain. He described severe weekly flare-ups lasting for hours resulting in difficulty with prolonged standing and walking, bending, twisting, lifting and carrying. Examination revealed the Veteran to have a normal posture with no abnormal spinal curvatures. There was, however, an antalgic gate with poor propulsion. Range of motion testing revealed flexion to 55 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees and bilateral lateral rotation to 20 degrees. While there was objective evidence of pain upon repetitive motion, there were no additional limitations after three repetitions. Neurological evaluation of the right lower extremity was normal. Motor examination of the left lower extremity was also normal but reflexes and sensation were diminished. X-rays revealed osteoarthritic changes with osteophyte formation and fusion of the lower lumbar spine from L4 to S1 with no signs of fracture or dislocation. A diagnosis of lumbar spondylosis with left L5 motor deficit and L4-S1 sensory deficit was assigned. The examiner concluded that this resulted in significant occupational effects with decreased mobility, problems with lifting and carrying, lack of stamina, weakness and decreased strength. The record also contains a February 2010 VA emergency room note. According to this record, the Veteran had low back pain for years with an acute worsening the previous night. He described radiating pain into the lower extremities with the left being greater than the right. He denied any incontinence of feces or urine. The Veteran was diagnosed with chronic low back pain with radiculopathy. A June 2010 VA treatment record notes that the Veteran had limited functional mobility and endurance secondary to chronic back pain associated with structural changes. Finally, the Veteran was treated by VA in November 2010 with continued complaints of worsening back pain. He again described numbness down his left leg. It was noted that these symptoms were not new. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 60 percent for his service-connected low back disability. The Veteran is currently rated under Diagnostic Code 5242, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under this formula, the next-higher disability evaluation of 100 percent is warranted when there is evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id at Note (5). The evidence of record clearly demonstrates that the Veteran has maintained a degree of motion in the spine. According to the July 2005 VA examination, the Veteran had forward flexion to 30 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 30 degrees, left lateral rotation to 20 degrees and right lateral rotation to 30 degrees, with no additional limitation of motion after three repetitions. Also, according to the May 2007 VA examination, the Veteran had flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees and bilateral lateral rotation to 10 degrees. Finally, upon examination in February 2010, the Veteran was found to have flexion to 55 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees and bilateral lateral rotation to 20 degrees. While there was pain on motion, there was no additional limitation. Therefore, the evidence of record clearly demonstrates that the Veteran's spine is not fixated in flexion or extension. A 100 percent disability evaluation is not warranted. In reaching the above conclusion, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the VA examiners concluded that while the Veteran did experience objective evidence of pain upon motion, this did not result in additional loss of motion. Evidence of pain is an important factor for consideration. However, the United States Court of Appeals for Veterans Claims (Court) has recently held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. The Board has also considered whether a higher disability evaluation may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, a 60 percent disability evaluation is the maximum disability evaluation available under this formula. 38 C.F.R. § 4.71a. The Board recognizes that the Veteran believes he is entitled to a higher disability evaluation for is low back disability. However, the Veteran has submitted no evidence to suggest that he suffers from complete fixation of the entire spine - the criteria necessary for a higher disability evaluation. Id. As such, the statements provided by the Veteran in support of his claim do not demonstrate entitlement to a higher disability evaluation. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The record consistently shows that the Veteran does not suffer from bowel or bladder impairment. However, the Veteran has reported symptomatology of pain and numbness radiating into the lower extremities throughout the pendency of his claim. Upon examination in July 2005, the Veteran reported pain radiating to both legs. Objective evaluation revealed left lower extremity symptomatology of diminished sensation, reduction in the calf by 1 cm, and absence of knee and ankle jerks. Upon examination in May 2007, the Veteran reported pain radiating bilaterally. Objective evaluation revealed hypoactive ankle jerk and knee jerk reflexes bilaterally. Finally, upon examination in February 2010, the Veteran reported pain and numbness, bilaterally. Neurological evaluation of the right lower extremity was normal. Motor examination of the left lower extremity was also normal but reflexes and sensation were diminished. The above evidence demonstrates that the Veteran is entitled to separate disability evaluations of 10 percent, bilaterally, for his lower extremity neurological manifestations. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted when there is evidence of mild incomplete paralysis of the sciatic nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The record demonstrates that the Veteran was found to have diminished reflexes in the right lower extremity upon examination in 2007. Therefore, there is objective evidence of right lower extremity radiculopathy. However, neurological evaluation of the right lower extremity was deemed to be normal upon examination in 2010, although the Veteran still reported pain, numbness and weakness. Due to the intermittent nature of the Veteran's objective symptomatology, the Board finds that the Veteran's right lower extremity radiculopathy is best described as "mild." As such, a 10 percent disability evaluation is warranted for radiculopathy of the right lower extremity. Likewise, a 10 percent disability evaluation is warranted for radiculopathy of the left lower extremity. The Veteran has consistently reported symptoms of pain, numbness and weakness. Evaluation has also revealed diminished reflexes and diminished sensation. While the left calf was noted to be 1 cm smaller in 2005, there is no further evidence of definite muscular atrophy. The 2010 VA examiner also concluded that motor examination of the left lower extremity was normal. As such, the Veteran's radiculopathy of the left lower extremity is best characterized as "mild," and as such, a separate disability evaluation is warranted for radiculopathy of the left lower extremity as well. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." 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. The Veteran's symptoms associated with his service-connected low back disability include limited motion and pain. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's low back disability with radiculopathy alone results in marked interference with employment above and beyond that considered by the assigned disability evaluations or that there have been frequent periods of hospitalization. The Board recognizes that the Veteran does indeed suffer significant occupational impairment as noted in his VA examinations. However, a degree of occupational impairment is inherent in his assigned disability evaluations. According to the February 2010 VA examiner, the Veteran was unemployed due to a combination of his medical and musculoskeletal morbidities, rather than due to any single disability. Therefore, referral for consideration of an extraschedular rating is not warranted. Furthermore, as will be discussed in the remand section below, a claim of entitlement to TDIU benefits has been inferred from the Veteran's claims). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran's low back disability has not warranted the maximum disability rating of 100 percent at any time during the pendency of this claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 60 percent for his low back disability must be denied. However, the evidence of record demonstrates that the Veteran is in fact entitled to separate disability evaluations of 10 percent for his radiculopathy of the right and left lower extremities. Bilateral Knee Disability The Veteran contends that he is entitled to disability evaluations in excess of 10 percent for his right and left knee instability. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran has not been entitled to a compensable disability evaluation for instability of either knee at any time during the pendency of his claim. For historical purposes, the Veteran was originally granted separate disability evaluations for instability of the knees in an April 2000 rating decision. A disability evaluation of 10 percent was assigned to each knee under Diagnostic Code 5257, effective as of January 27, 2000. In January 2005, VA received the Veteran's claim for increased disability evaluations. In a May 2005 rating decision, the RO denied the Veteran's claims for increased disability evaluations based on limitation of motion. In addition, the RO reduced the Veteran's disability evaluations for instability of the right and left knees to 0 percent, effective as of October 15, 2004. In June 2005, VA received a notice of disagreement from the Veteran. The Veteran was very specific that he disagreed with the reduction of his disability evaluations for his bilateral knee instability. The RO affirmed the 0 percent disability evaluations in August 2006, and the Veteran appealed this decision to the Board in September 2006. As such, the only matter currently before the Board is entitlement to increased disability evaluations for instability of the knees, bilaterally. Upon filing his claim, the Veteran was afforded a VA examination of the knees in March 2005. The Veteran reported weakness in the knees, always more on the left than the right. The Veteran also reported giving way and locking of the left knee only. The Veteran reported occasional flare-ups in the knees but denied any further limitation of motion or functional impairment as a result of this. It was noted that the Veteran did not wear any sort of assistive devices and that he was independent in his activities of daily living. The examiner noted that the Veteran was presently working full time and that he had lost approximately one month of work in the last 12 months. Examination revealed no ligamentous instability. Lachman and drawer testing were negative as well. There was also evidence of mild crepitus. The examiner diagnosed the Veteran with chondromalacia of the patella in the left knee and arthritis in the right knee. The Veteran was afforded a VA examination of the knees in May 2007. The Veteran reported stiffness and pain in the knees bilaterally. However, he denied deformity, giving way, instability, weakness, incoordination, locking or episodes of dislocation or subluxation. The Veteran reported severe weekly flare-ups lasting for hours. Examination revealed crepitus, painful movement and guarding of movement. There was no instability. There was subpatellar tenderness. The examiner diagnosed the Veteran with osteoarthritis of the knees bilaterally that resulted in significant occupational effects due to pain, fatigue, weakness and decreased mobility. The Veteran was most recently afforded a VA examination of the knees in March 2010. The Veteran complained of bilateral knee pain, stiffness and weakness. The Veteran reported pain, giving way, stiffness, weakness and decreased motion. The Veteran denied instability or incoordination. The Veteran also reported severe daily flare-ups lasting for hours resulting in difficulty with activities such as walking, squatting or jogging. Examination revealed an antalgic gait with poor propulsion. There was a well-healed medical patella scar of the right knee that was 6 centimeters (cm) by 1 cm and a well-healed portal scar of the left knee. There was crepitation and subpatellar tenderness. The meniscus was also surgically absent. X-rays revealed normal knees with no evidence of fracture or dislocation. There were, however, moderate hypertrophic changes. The examiner diagnosed the Veteran with mild osteoarthritis of the knees bilaterally that resulted in significant occupational effects due to decreased mobility, problems with lifting and carrying, weakness or fatigue. The record also contains a private treatment record dated April 2010. The left knee was found to have greater crepitus than the right knee. It was also more consistently sore than the right knee. The Veteran was diagnosed with symptomatic knee arthritis, bilaterally, greater in the left knee. The preponderance of the above evidence demonstrates that the Veteran is not entitled to compensable disability evaluations for his service-connected instability of the right and left knees. According to Diagnostic Code 5257, which rates impairment based on recurrent subluxation or lateral instability, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The evidence of record demonstrates that the Veteran routinely denied instability of either knee. Furthermore, the May 2007 and February 2010 VA examiners specifically found no evidence of instability in either knee. X-rays from February 2010 also revealed no evidence of dislocation. While the Veteran has reported subjective symptoms of giving way, there is no objective evidence of instability or subluxation at any time during the pendency of the Veteran's claim. As such, assigning a 10 percent disability evaluation under Diagnostic Code 5257 would be inappropriate, as this disability evaluation is meant to compensate a Veteran who suffers from slight recurrent subluxation or lateral instability. The evidence of record demonstrates that the Veteran does not suffer from these symptoms. The Board has also considered whether a higher disability evaluation may be warranted under any other applicable diagnostic code. Diagnostic Code 5259 is used for rating the symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. While the February 2010 VA examiner did note that the meniscus was surgically absent, there was no evidence of this removal being symptomatic. There was no instability or incoordination, and X-rays revealed no fractures or dislocation. The final diagnosis was arthritis of the knees, and none of the Veteran's symptomatology was linked to his removed meniscus. As such, a disability evaluation based on symptomatic removal of cartilage is not warranted. Also, there is no evidence of impairment of the tibia and fibula or genu recurvatum. Id at Diagnostic Codes 5262-63. As such, these codes are not applicable. The Board recognizes that the Veteran disagrees with the noncompensable disability evaluation assigned to his bilateral knee instability. However, the Veteran has not submitted any evidence or statement to demonstrate that he is entitled to a higher disability evaluation, nor has he disagreed with the VA examiners' assertions that he denied instability of the knees. As such, the Veteran has not submitted any lay evidence to support a higher disability evaluation. The Board has again considered whether referral for extraschedular consideration may be warranted. However, Diagnostic Code 5257 provides higher disability evaluations based on increasing degrees of instability or subluxation. 38 C.F.R. § 4.71a. Furthermore, there is no evidence of any occupational impairment, hospitalization or medical treatment for instability or subluxation of either knee. As such, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board has again considered whether a staged rating is warranted in this case. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evidence of record consistently demonstrates that the Veteran has not suffered from instability or subluxation of either knee at any time during the pendency of his claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to compensable disability evaluations for instability of the right and left knees must be denied. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. According to the February 2010 VA examiner, the Veteran was unemployed as a result of his medical and musculoskeletal morbidities. Therefore, the record raises a claim of unemployability. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Presently, the Veteran is service-connected for a lumbosacral strain (rated as 60 percent disabling), a mood disorder (rated as 50 percent disabling), arthritis of the left knee (rated as 20 percent disabling), arthritis of the right elbow (rated as 10 percent disabling), arthritis of the right knee (rated as 10 percent disabling), arthritis of the cervical spine (rated as 10 percent disabling), radiculopathy of the left lower extremity (rated as 10 percent disabling), radiculopathy of the right lower extremity (rated as 10 percent disabling), pseudofolliculitis barbae (rated as 0 percent disabling), instability of the right knee (rated as 0 percent disabling), and instability of the left knee (rated as 0 percent disabling), for a combined disability evaluation of 90 percent. As such, the Veteran meets the percentage requirements laid out in 38 C.F.R. § 3.340. In addition, the evidence of record demonstrates that the Veteran is unable to follow a substantially gainful occupation due to his combined service-connected disabilities. The February 2010 VA examiner noted that the Veteran was no longer employed. This was noted to be due to the Veteran's medical and musculoskeletal morbidities. However, according to the Veteran's May 2007 and July 2005 VA examinations, he was still employed full-time, demonstrating that he was able to follow a substantially gainful occupation at this time. Therefore, the evidence of record demonstrates that the Veteran is entitled to TDIU benefits, as of February 13, 2010 - the date of his VA examination in which he was found to be unemployed as a result of his numerous disabilities. Affording the Veteran the full benefit of the doubt, the Board finds that entitlement to TDIU benefits, as of February 13, 2010, is warranted. ORDER Entitlement to a disability rating in excess of 60 percent for a lumbosacral strain to include with degenerative joint disease, post-operative interbody fusion L4-5 and L5-S1 is denied. A separate disability evaluation of 10 percent for radiculopathy of the left lower extremity is granted. A separate disability evaluation of 10 percent for radiculopathy of the right lower extremity is granted. Entitlement to a compensable disability evaluation for instability of the left knee is denied. Entitlement to a compensable disability evaluation for instability of the right knee is denied. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs