Citation Nr: 1302137 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-11 287A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee (previously classified as internal derangement of the left knee). 2. Entitlement to an initial disability rating in excess of 10 percent for DJD of the right knee. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which increased the Veteran's disability rating for DJD (previously classified as internal derangement of the left knee) to 10 percent, effective December 20, 2006. Additionally, in a July 2008 rating decision, the RO granted service connection for DJD of the right knee and assigned a 10 percent disability rating, effective December 20, 2006. The Veteran filed a notice of disagreement (NOD) with the 10 percent disability rating assigned for his left knee disability in August 2008, and timely perfected his appeal in April 2009. The Veteran filed a notice of disagreement (NOD) with the 10 percent disability rating assigned for his right knee disability rating in December 2008, and perfected his appeal in January 2010, notwithstanding the fact that his substantive appeal pre-dated the statement of the case (SOC) on this issue. Archibold v. Brown, 9 Vet. App. 124, 132 (1996). The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in June 2011. A written transcript of this hearing was prepared and incorporated into the evidence of record. In September 2011, the Board remanded the issues on appeal for further examination. This development has been completed and the claims are ready for review. Subsequently, in an August 2012 rating decision, the Appeals Management Center (AMC) granted a separate 10 percent disability rating for instability of the right knee, and a separate 20 percent disability rating for instability of the left knee, effective January 6, 2012. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals that there are additional VA outpatient treatment records discussing the Veteran's bilateral knee condition, which were considered when making a determination in this case. Further, the remaining records are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's left knee disability has been manifested by degenerative changes of the joint shown on x-ray. 2. As of January 6, 2012, the objective medical evidence shows moderate instability of the left knee. 3. At no point during the appeal has the Veteran's left knee been ankylosed; nor has there been objective evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion, flexion limited to less than 60 degrees, extension limited to more than 5 degrees, or evidence of malunion of the tibia or fibula. 4. Throughout the course of the appeal, the Veteran's right knee disability has been manifested by degenerative changes of the joint shown on x-ray. 5. As of January 6, 2012, the objective medical evidence shows slight instability of the right knee. 6. At no point during the appeal has the Veteran's right knee been ankylosed; nor has there been objective evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion, flexion limited to less than 60 degrees, extension limited to more than 5 degrees, or evidence of malunion of the tibia or fibula. 7. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for DJD of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 2. The criteria for a disability rating in excess of 10 percent for DJD of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2012). 3. The competent and probative medical evidence of record does not show that the Veteran's service-connected right and left knee disabilities are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's claim of an increased disability rating for a right knee disability arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for the claim of an initial disability rating in excess of 10 percent for DJD of the right knee. The RO sent correspondence in January 2007 that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide in reference to his claim for an increased disability rating in excess of 10 percent for DJD of the left knee. In addition, the letter informed the Veteran of how effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran in regards to his claim for an increased rating in excess of 10 percent for DJD of the left knee. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining VA medical records, private treatment records, and Social Security Administration Disability records. Additionally, the Veteran was provided with VA examinations in February 2007 and January 2012. Additionally, the Veteran has not indicated that he has received additional treatment for his service-connected disabilities. The Board thus concludes that there are no additional records outstanding with respect to these claims. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2012). 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 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. As is the case with the Veteran's service-connected DJD of the right knee, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present disability level is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for increased rating for DJD of the left knee (December 2006), and continues to the present time. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran was initially granted service connection and assigned a 10 percent disability rating for DJD of the right knee disability, effective December 20, 2006, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.71a, Diagnostic Code (DC) 5010 (2012). Additionally, the Veteran's left knee disability rating was increased to 10 percent, effective December 20, 2006, also under DC 5010. Subsequently, the Veteran was granted a separate 10 percent disability rating for right knee instability and a 20 percent disability rating for left knee instability under DC 5257. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by x-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under these codes. 38 C.F.R. § 4.71a. That said, Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Board points out that separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). See VAOPGCPREC 09-04 (September 17, 2004). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; and extremely unfavorable flexion at an angle of 45 degrees or more, is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Code 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a Veteran's knee disability is rated under Diagnostic Code 5257, the Veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims file, including his VA treatment records, VA examination reports, private treatment records, the hearing transcript, and statements submitted in support of his claim. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims for increased disability ratings for his left and right knee disabilities. The Veteran contends that he is entitled to disability ratings in excess of 10 percent for DJD of the left and right knees. June 2004 x-rays of the Veteran's left and right knees were taken. After reviewing the films, the physician's impression of the Veteran's right knee was that there was only minimal narrowing of the medial compartment of the knee, without obvious secondary changes of osteoarthritis. Further, the film of the Veteran's left knee showed severe tricompartmental osteoarthritis. The Veteran submitted an October 2004 private orthopedic evaluation. Examination of the left and right knees showed normal valgus alignment, full range of motion on extension and flexion, no quad atrophy, trace effusion, or crepitus. Additionally, both knees were tender over the medial facet of the patella. Further, there was no evidence of instability and there was no evidence of pain on varus flexion and rotation. The Lachman's test, pivot shift, and posterior drawer were all negative, and the anterior drawer was normal with good end point. The Veteran was afforded a VA examination in February 2007. The Veteran reported that his left knee pain was intermittent sharp pain, on average an 8 out of 10. The pain was aggravated by walking and standing. At times, his left knee locked and buckled. He also complained of right knee pain, which was intermittent aching pain, on average 6 out of 10. The pain was aggravated by walking and standing. He denied that the right knee locked or buckled. The Veteran reported that he last worked in March 2006 as a systems analyst. He reported that he lost this job because it was moved to India. He did not use a brace or other assistive device. He was independent in activities of daily living. Further, he did not report additional limitation following repetitive use or during flare-ups. Upon physical examination, both knees demonstrated no gross deformity or joint effusion. Ranges of motion (ROM) of both knees were from 0 to 145 degrees without pain; however, following five repetitive ROM, right knee pain was elicited. Both knee range of motion remained the same after repetitive ROM. There was also no evidence of fatigue, weakness, or lack of endurance. Further, there was no joint line tenderness. Anterior drawer, Lachman's tests, and McMurray's test were all negative when performed on both knees. The examiner diagnosed the Veteran with chronic bilateral knee pain likely, secondary to DJD, and history of left knee meniscus and anterior cruciate ligament injury. The Veteran's VA treatment records show ongoing complaints and treatment of knee pain, stiffness, swelling, and osteoarthritis. Additionally, the Veteran was noted to have patellar grind and crepitus of the left knee. Further he was also noted to have anterior/posterior/varus/valgus laxity. Active ROM was 0 to 140, and muscle strength was listed as 5 out of 5. In February 2009, the Veteran was issued a medial unloader brace. An April 2009 report shows limited flexion of 100 to 110 of the left knee. The Veteran also received knee injections to help his osteoarthritis. In a May 2009 report, the physician noted that the Veteran had clicking, crunching, and clicking, but no instability noted. The Veteran reported that the medial unloader brace was very helpful. In February 2009 and June 2010 VA treatment records, the Veteran's physician noted that it was likely he will need to undergo a total knee replacement in the future. February 2009 VA x-ray reports of the Veteran's knees showed bilateral osteoarthritis, severe on the left, particularly involving the medial compartment. Additionally, both knees were noted to have a suprapatellar joint effusion. A July 2011 private treatment record noted treatment for left knee pain. Upon examination, the range of motion of the Veteran's left knee ranged from 5 to 110 degrees, with positive patellofemoral crepitus. He also had tenderness in the medial joint line and varus deformity. The Veteran was afforded a Travel Board Hearing in June 2011. He testified that he had difficulty moving around and his knees would give out. Additionally, they were sore and achy, and disturb his sleep. Further, he stated that he could not walk or stand for a long period of time. He also reported that he wears a left knee brace to help with weakness and instability. The Veteran was afforded another VA examination in January 2012. The examiner noted diagnoses of bilateral knee osteoarthritis, bilateral ACL insufficiency, and atrophy of disuse of the left knee. Upon physical examination, the Veteran's right knee flexion was to 130 degrees, with no objective evidence of painful motion. Right knee extension was 0 degrees, with no objective evidence of painful motion or any degree of hyperextension. The Veteran's left knee flexion was to 110, but limited to 105 degrees with painful motion. Left knee extension was 0 degrees, with no objective evidence of painful motion or any degree of hyperextension. The findings were consistent after repetitive -use testing, with three repetitions. The Veteran was noted to have functional loss and/or functional impairment, such as less movement than normal and pain on movement of both knees, atrophy of disuse of the left knee, and instability of station of the right knee. Muscle atrophy was noted of the left thigh and calf. The Veteran was noted to have 5 out of 5 muscle strength (normal strength) on flexion and extension of both knees. The Lachman's test results showed anterior instability of 1+ (0-5 millimeters) of the right knee and 2+ (5-10 millimeters) of the left knee. Posterior and medial-lateral instability tests were normal for both knees. The Veteran did not have a history of recurrent patellar subluxation/dislocation. The Veteran was noted to have shin splints on his left side, but described no current symptoms at that time. Additionally, there were no additional tibial or fibular impairments documented by the VA examiner. The Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. Further, he did not undergo a total knee replacement. The Veteran reported that he used a hinged brace for his left knee regularly, however, did not use the crutches or cane that he had. The Veteran did not have functional impairment of an extremity such that no effective function remained. January 2012 x-ray findings of the right knee showed mild to moderate tricompartmental osteoarthritis. There was no fracture or dislocation, and minimal joint effusion was identified. Left knee x-rays showed moderate to severe tricompartmental osteoarthrosis and tibial subluxation of the femur with respect to the tibia. There was no fracture or dislocation and small to moderate joint effusion was identified. The examiner noted that there was no x-ray evidence of patellar subluxation. The Veteran's bilateral knee disabilities impacted his ability to work, such as limiting his ability to stand for prolonged periods, walk distances, squat, lift heavy object from ground level, or climb stairs. The examiner concluded that currently, the Veteran's osteoarthritis of his right knee was moderate and his left knee was severe, based on his clinical examination and radiographic findings. In light of the evidence, the Veteran is not entitled to increased ratings in excess of 10 percent for DJD of the right and left knees. The Veteran's DJD of his knees are rated under Diagnostic Code 5010. As stated above, when there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. At all relevant points of the claims period, the Veteran has not had motion limited to less than 130 degrees of his right knee, and 100 degrees of his left knee. However, to receive a 20 percent rating, the Veteran's flexion must be limited to 30 degrees, by pain or otherwise. His motion has not been shown to be so limited. Similarly, under Diagnostic Code 5261, limitation of extension to 15 degrees is required for a 20 percent rating. However, the Veteran's extensions of the left and right knees have showed no limitations higher than 5 degrees, due to pain or otherwise. The Veteran's limitations of flexion and extension would be considered noncompensable under the appropriate diagnostic codes. See 38 C.F.R. § 4.71a, DC 5260, 5261. The Board has considered whether there is additional functional loss due to fatigability, incoordination, pain on movement, deformity, or atrophy of disuse, and notes that, throughout the appeal, the Veteran has reported having knee problems effecting his ability to stand for prolonged periods, walk distances, squat, lift heavy object from ground level, or climb stairs. In this regard, the Board acknowledges that the Veteran experiences recurrent pain, swelling, and stiffness as a result of his bilateral knee disabilities. However, the severity of his bilateral knee disabilities is contemplated in the current disability rating. Moreover, even when considering pain, functional impairment, and muscle atrophy from disuse, the Veteran's flexion of the left knee is limited only to 100 degrees and of the right knee to 130 degrees, and as such, his range of motion findings do not approach the criteria for a compensable rating under DC 5260 (i.e., 45 degrees of flexion). Additionally, there was no objective evidence of pain with extension, or after three repetitions. Accordingly, the Board finds that the current 10 percent rating for the Veteran's bilateral knee disabilities appears to be based upon painful motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). As such, the pain experienced on motion has been considered in assigning the 10 percent evaluation and there is no additional documented range of motion lost that would warrant a higher rating due to pain. Furthermore, while range of motion studies discussed above would result in noncompensable evaluations under the limitation of motion codes (i.e. Diagnostic Codes 5260 and 5261), motion of the knee is nevertheless limited, and there was evidence of degenerative disease on X-ray. As such, a 10 percent evaluation is appropriate for both right and left knee disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2001). In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. The Veteran is currently receiving separate disability ratings under DC 5257, for instability of his left and right knees. In an August 2012 rating decision, the Veteran was granted a separate 10 percent disability rating for right knee instability, and a 20 percent disability rating for left knee instability, effective January 6, 2012. In this case, the evidence shows slight instability of the right knee and moderate instability of the left knee as of the January 2012 VA examination. In this regard, the Board notes that at the January 2012 VA examination, the Lachman's test results showed anterior instability of 1+ (0-5 millimeters) of the right knee and 2+ (5-10 millimeters) of the left knee. However, posterior and medial-lateral instability tests were normal for both knees. Additionally, the Veteran reported use of a brace on his left knee, but not his right knee. Further, while the Veteran reported having a cane, he did not use it. Lastly, the Veteran did not have a history of recurrent patellar subluxation/dislocation. As such, there is evidence that the Veteran has slight instability of the right knee and moderate instability of the left knee, as shown by the results of the Lachman's test and the fact that the Veteran wears a left knee brace for support. However, because the posterior and medial-lateral instability tests were normal for both knees and the Veteran does not use an assistive device for his right knee, the evidence does not support a finding of moderate instability for the right knee or severe instability for the left knee. Accordingly, the objective medical evidence does not show that increased disability ratings for instability of the left or right knees are warranted under DC 5257. The Board has also considered whether the Veteran is entitled to an increased rating for bilateral knee ankylosis, dislocation of the semilunar cartilage, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. The Veteran is not entitled to an increased disability rating for impairment of the tibia or fibula under DC 5262. At the January 2012 VA examination, the Veteran was noted to have shin splints on his left side. However, he also reported that he had no current symptoms of the condition at that time. Additionally, left knee x-rays showed tibial subluxation of the femur with respect to the tibia. However, there were no tibial or fibular impairments documented by the VA examiner at that time. Therefore, the Veteran would not be entitled to an increased rating under DC 5262. The Veteran is not entitled to an increased disability rating for removal of semilunar cartilage under DC 5259 or genu recurvatum under DC 5263. The Board notes that the maximum rating allowed under DC 5259 and 5263 is a 10 percent rating. Therefore, the Veteran would not be subject to a higher disability rating under these diagnostic codes. Additionally, the evidence of record fails to demonstrate such symptomatology as knee ankylosis or dislocation of the semilunar cartilage. Specifically, the January 2012 VA examination and x-ray report showed no history of dislocation. Additionally, treatment records and VA examination reports did not document any left or right knee ankylosis. Therefore, the Veteran is not entitled to an increased rating under DC 5256 or 5258. Finally, the Board is mindful that February 2009 and June 2010 VA treatment records indicated that the Veteran will likely require a total knee replacement in the future. However, such a statement, while rendered by a medical professional, addresses a problem that has not yet occurred and, thus is inherently speculative and lacking probative value. As such, it cannot form the basis for assigning a higher rating for the Veteran's right knee disability. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). For the reasons and bases provided above, the preponderance of the evidence in this case is against the Veteran's claims for ratings in excess of 10 percent for DJD of the right and left knees. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Accordingly, the Veteran's claims for an increased rating for DJD of the right and left knees are denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court 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 service-connected 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's service-connected left and right knee disabilities include pain, limitation of motion, and giving way or weakness. However, these symptoms of the Veteran's left and right knee disabilities are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describes his disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5256-63. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. IV. Other Considerations With respect to a total disability rating based on individual unemployability (TDIU), as a component of the claims for benefits for the underlying right and left knee disabilities, the Board observes that, at the June 2011 Travel Board Hearing, the Veteran reported that his service-connected knee disabilities impacted his previous employment. The Veteran specifically stated that his knee disabilities had such an impact on his previous job that he finally had to quit. Notably, however, the record evidence contains the Veteran's earlier lay reports provided at a February 2007 VA examination for his knees, which reveal that in 2006 he lost his job as a systems analyst because his employer out-sourced the department in which he worked. Similarly, at his August 2008 private psychological evaluation, the Veteran again provided his lay reports of having lost his job in 2006 due to out-sourcing by his employer; he related some difficulties in his career advancement due to his service-connected PTSD; and he stated that he had secured part-time employment as a bartender and maintaining the golf course at the Lakehurst Naval Base. According to the occupational history provided by the Veteran at his July 2009 VA spine examination, he last worked in May 2009 as a golf course cashier, and related to the VA examiner at that time that his back pain made it difficult for him to continue work. The occupational history, which was provided by the Veteran in 2007, 2008 and 2009, clearly indicates that it is the combined effect of his former employer's decision to outsource its operations and his service-connected spinal condition and PTSD, rather than his service-connected bilateral knee disabilities alone, that have had a significant impact on his ability to work. As such, the testimony related by the Veteran in June 2011 of unemployability due exclusively to the service-connected bilateral knee disabilities is contradicted by his earlier reports during his VA and private examinations in 2007, 2008 and 2009. In assessing the credibility and probative value of these conflicting statements, significant credibility and probative value attaches to the more contemporaneous statements made during the 2007, 2008 and 2009 examinations. This is so because, unlike the Veteran's belated testimony of unemployability due to the bilateral knee disabilities, his self-reported, contemporaneous occupational history (as noted in 2007, 2008, and 2009) was reported to health care professionals for purposes of diagnosis and treatment. See generally Fed. R. of Evid. 803(4) (Statements made to health care providers for purposes of diagnosis and treatment are extremely trustworthy because of the patient's strong motivation to be truthful); Thurber v. Brown, 5 Vet. App. 119, 126 (1993) (Fed. R. of Evid. may be used as a persuasive source of authority). In other words, the Veteran's belated testimony of unemployability due to his service-connected bilateral knee disabilities does not approach the credibility and probative weight of the medical records made at the time of actual treatment. This accumulation of the Veteran's own statements given while seeking professional medical treatment is credible and persuasive evidence of his occupational history. The medical records are highly probative in reflecting the Veteran's accounts of his occupational history to aid different professional in providing him with treatment and advice. These prior, contemporaneous statements of his occupational history are reasonably consistent among themselves and have been recorded by multiple personnel. Thus, the cumulative medical records of the Veteran's own admissions concerning his occupational history are credible and probative evidence, establishing that his unemployability is due to other factors and not his bilateral knee disabilities. For the reasons discussed above, the Board has considered and declines to apply 38 C.F.R. § 4.16 as part of the discrete claims for benefits for the underlying bilateral knee disabilities. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, to the extent the Veteran wishes to pursue a claim for a TDIU rating due to his service-connected lumbar spine condition and PTSD, or due to all of his service-connected disabilities, he is free to file such a claim at his local VA Regional Office. ORDER Entitlement to an increased disability rating in excess of 10 percent for DJD of the left knee (previously classified as internal derangement of the left knee), is denied. Entitlement to an initial disability rating in excess of 10 percent for DJD of the right knee is denied. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs