Citation Nr: 1305486 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 10-31 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to January 17, 2012, and in excess of 30 percent thereafter, for the service-connected right knee osteoarthritis. 2. Entitlement to a rating in excess of 20 percent for the service-connected right knee instability. 3. Entitlement to a rating in excess of 10 percent for the service-connected left knee osteoarthritis. 4. Entitlement to a rating in excess of 10 percent for the service-connected left knee instability. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to July 1971 and from May 1983 to April 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied ratings in excess of 10 percent for the service-connected bilateral knee osteoarthritis. In December 2011, the Board remanded the claims for further development and adjudication. While the case was in Remand status, in an August 2012 rating decision, the RO awarded an increased 30 percent rating for the service-connected right knee osteoarthritis effective January 17, 2012. The August 2012 rating decision also awarded a separate 20 percent rating for right knee instability and 10 percent for left knee instability, both effective from September 6, 2011. The additional ratings then became part of the appeal and his claims remained in controversy. 38 C.F.R. §§ 4.7, 4.71a; See also VAOPGCPREC 23-97 (July 1, 1997, revised July 24, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998); VAOPGCPREC 9-04 (September 17, 2004): AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claims remain in controversy as less than the maximum benefits available have been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Board acknowledges that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. The Veteran has raised a claim for TDIU. See Appellant's Post Remand Brief dated January 7, 2013. For reasons discussed in greater detail below, the claim for TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Prior to January 17, 2012, the service-connected right knee osteoarthritis was productive of painful motion without evidence of additional functional loss due to pain, weakness, incoordination or fatigue; it did not limit flexion to 30 degrees, nor did it limit extension to 5 degrees. 2. From January 17, 2012, the service-connected right knee osteoarthritis was productive of painful motion with evidence of additional functional loss due to pain causing limitation of extension to no more than 20 degrees; there was no evidence of additional functional loss due to weakness, incoordination or fatigue; there was no evidence of compensable limitation of flexion (to 60 degrees). 3. The first objective medical evidence of right knee instability is dated September 6, 2011; it has been shown to be no more than moderate in nature; there has been no evidence of recurrent subluxation. 4. The service-connected left knee osteoarthritis has been productive of painful motion without evidence of additional functional loss due to pain, weakness, incoordination or fatigue; it has not limited flexion to 30 degrees, nor did it limit extension to 15 degrees. 5. The first objective medical evidence of left knee instability is dated September 6, 2011; it has been shown to be no more than mild in nature; there has been no evidence of recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 17, 2012, and in excess of 30 percent thereafter, for the service-connected right knee osteoarthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2012). 2. The criteria for a rating in excess of 20 percent for the service-connected right knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2012). 3. The criteria for a rating in excess of 10 percent for the service-connected left knee osteoarthritis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2012). 4. The criteria for a rating in excess of 10 percent for the service-connected left knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a December 2009 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided VCAA notice to the Veteran in December 2009 , which was prior to the April 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claims. The December 2009 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, post- service VA records, reports of VA examination, and statements of the Veteran. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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 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 normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). III. Rating Criteria for the Knees Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint 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. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Relevant criteria, under applicable Diagnostic Codes are as follows: A 60 percent evaluation may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. A 50 percent evaluation may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 40 percent evaluation may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 30 percent evaluation may be assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a; Diagnostic Code 5256. For other knee impairment, recurrent subluxation or lateral instability of the knee, a severe case is to be rated 30 percent disabling; a moderate case is to be rated 20 percent disabling. For a slight case a 10 percent rating is appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Limitation of flexion of the leg to 60 degrees warrants a 0 percent rating. When flexion is limited to 45 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where flexion is limited to 30 degrees. A 30 percent rating is appropriate where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg to 5 degrees warrants a 0 percent rating. When extension is limited to 10 degrees, a 10 percent rating is assigned. A 20 percent rating is appropriate where extension is limited to 15 degrees. A 30 percent rating is appropriate where extension is limited to 20 degrees. A 40 percent rating is appropriate where extension is limited to 30 degrees. A 50 percent rating is appropriate where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Impairment of a tibia and fibula with slight knee or ankle disability may be assigned a 10 percent evaluation. Impairment of a tibia and fibula with moderate knee or ankle disability may be assigned a 20 percent evaluation; impairment of a tibia and fibula with marked knee or ankle disability may be assigned a 30 percent evaluation and nonunion with loose motion requiring a brace or malunion may be assigned a 40 percent evaluation. 38 C.F.R. § 4.71a; Diagnostic Code 5262. According to VA standards, normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 (degenerative arthritis) does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). IV. Analysis The Board has reviewed all the evidence in the Veteran's claims file and Virtual VA record, which contained additional pertinent evidence reviewed by the RO in the August 2012 supplemental statement of the case. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Right Knee Osteoarthritis and Instability The Veteran appealed the decision that continued a 10 percent rating for right knee osteoarthritis, and the Board will now consider whether a higher evaluation is warranted for the right knee disability at any stage during the appeal period. See Hart, supra. In an August 2012 rating decision, the RO awarded an increased 30 percent rating for the service-connected right knee osteoarthritis effective January 17, 2012. The August 2012 rating decision also awarded a separate 20 percent rating for right knee instability effective from September 6, 2011. His claims remain in controversy as less than the maximum benefit available has been awarded. See AB, supra. As delineated above, the Veteran's service connected right knee osteoarthritis has been assigned a 10 percent rating prior to January 17, 2012, and a 30 percent thereafter under Diagnostic Code 5260 for arthritis. The right knee has also been assigned a separate 20 percent rating for right knee instability under Diagnostic Code 5257, effective from September 6, 2011. In order to afford the Veteran the broadest scope of review, and to ensure that each separate disability involving the right knee is evaluated properly, the Board shall consider the service-connected symptomatology involving the knee under each and every applicable Diagnostic Code that provides rating criteria for evaluating knee disabilities. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claims in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the right knee disability does not warrant a rating in excess of the currently assigned 10 percent prior to January 17, 2012, and 30 percent thereafter, for osteoarthritis and 20 percent for instability under any Diagnostic Code applicable for rating knee disorders, or any combination thereof. 38 C.F.R. § 4.7. In rating the Veteran's right knee disability, the Board notes that there is radiographic evidence of arthritis of the knee. Under Diagnostic Codes 5003 and 5010, traumatic/degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. The criteria for rating extension and flexion of the knee are found at Diagnostic Codes 5260 and 5261, and detailed above. Prior to January 17, 2012, a review of the evidence shows that flexion has been at worse limited to 95 in VA outpatient treatment record dated in September 2010. Flexion was limited to 110 degrees during VA examination in January 2010 and to 105 degrees during VA examination in June 2011. This does not meet the criteria established for a 20 percent rating under Diagnostic Code 5260 prior to January 17, 2012, which would require flexion limited to 30 degrees. Extension was full on examination in January 2010 and June 2011. The Board notes that VA treatment providers indicated in September 2010 that the Veteran lacked a few degrees of extension; however, it was not quantified. These findings do not meet the criteria established for a noncompensable rating under Diagnostic Code 5261, which requires extension limited to 5 degrees. 38 C.F.R. § 4.71a. Thus, the criteria do not provide for a rating in excess of 10 percent for limited flexion or an additional separate rating based on actual limitation of extension prior to January 17, 2012. As previously indicated, the RO awarded an increased 30 percent rating for right knee osteoarthritis effective from January 17, 2012 (the date of VA examination). The Board would note that the RO indicated that the increase was warranted under Diagnostic Code 5260, which is the maximum schedular rating for limited flexion. However, flexion was limited to 100 degrees upon VA examination in January 2012 and to 95 degrees on repetitive testing. This would not meet the criteria for even a noncompensable rating under Diagnostic Code 5260, which requires flexion limited to 60 degrees. The Board would note that from January 17, 2012, the Veteran's right knee osteoarthritis should have been rated as 30 percent disabling under Diagnostic Code 5261 for limited extension. Extension was limited to 15 degrees during examination in January 2012 and to 20 degrees upon repetitive testing. This meets the criteria for a 30 percent rating , and no higher, under Diagnostic Code 5261, for extension limited to 20 degrees. There was no evidence of extension limited to 30 degrees to warrant a higher 40 percent rating. While right knee osteoarthritis is more properly rated as 30 percent rating disabling for limited extension from January 17, 2012, a separate rating for limited flexion was not warranted as there was no evidence of flexion limited to 60 degrees under Diagnostic Code 5260. 38 C.F.R. §§ 4.7, 4.25, 4.71a; See also VAOPGCPREC 23-97 (July 1, 1997, revised July 24, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998); VAOPGCPREC 9-04 (September 17, 2004). The Board has noted the Veteran's complaints of pain experienced in his right knee and thus, considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, even with painful motion (between 50 and 110 degrees) during VA examination in January 2010, the Veteran had range of motion from zero to 110 degrees. Though he was not able to perform repetitive testing due to pain, the examiner estimated that range of motion would not have decreased had he been able to perform the test. Despite painful motion, the Veteran's range of motion was from zero to 105 degrees upon VA examination in June 2011. There were no additional limitations after three repetitions of range of motion. There was no evidence of fatigability, incoordination, or weakness of the knee during VA examination in 2010 or 2011. During VA examination in January 2012, the Veteran's range of motion was from 15 to 100 degrees with pain. Upon repetitive testing range of motion decreased to 20 to 95 degrees and there was incoordination. There was no evidence of weakened movement or excess fatigability in 2012. The complaints of pain are clearly accounted for in the 10 percent rating prior to January 17, 2012, as the Veteran's limitation of flexion and extension did not even meet the criteria for even a noncompensable rating under these code sections. 38 C.F.R. § 4.71a. From January 17, 2012, the complaints of pain are also accounted for in the increased 30 percent rating as they were based on findings of extension limited to 20 degrees upon repetitive testing. Even after repetitive testing, limitation of flexion did not meet the criteria for a noncompensable rating (flexion limited to 60 degrees). Turning next to disability due to instability, the Board finds that despite the Veteran's subjective complaints of right knee instability and evidence showing a varus deformity of the right knee, the medical records are devoid of objective findings of instability of the right knee prior to September 6, 2011. Notably, the January 2010 VA examiner found no evidence of instability. VA treatment providers in September 2010 found good stability of the right knee. There was also no evidence of instability on VA examination in June 2011. The examiner specifically indicated there was "pseudo laxity" with varus stress testing due to pronounced varus deformity, but no actual instability was shown. The first objective finding of grade 2 moderate right knee instability is contained in VA outpatient treatment record dated September 6, 2011. The Veteran repeatedly denied recurrent dislocation or subluxation. Accordingly, there is no basis for providing a separate evaluation based on instability under Diagnostic Code 5257 for recurrent subluxation or lateral instability prior to September 6, 2011. 38 C.F.R. § 4.71a. From September 6, 2011, the Veteran's lateral instability has been shown to be no more than moderately disabling. Notably, the September 2011 VA treatment provider indicated that right knee instability was only moderate in nature. Upon VA examination in January 2012, there was no evidence of anterior or posterior instability. Medial lateral instability was 2+ (5-10 millimeters). There has been no evidence of severe instability to warrant a 30 percent rating. The Board has noted the Veteran's complaints of pain experienced in his right knee and thus, has once again considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, are 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, 12 (1996). The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's right knee disability. After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record. There was no evidence of ankylosis of the right knee (Diagnostic Code 5256), dislocated or removal of symptomatic semilunar cartilage (Diagnostic Codes 5258, 5259) or impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). 38 C.F.R. § 4.71a. "Staged" ratings, other than what is already in effect, are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Hart, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Left Knee Osteoarthritis and Instability The Veteran appealed the decision that continued a 10 percent rating for left knee osteoarthritis, and the Board will now consider whether a higher evaluation is warranted for the left knee disability at any stage during the appeal period. See Hart, supra. In an August 2012 rating decision, the RO awarded a separate 10 percent for left knee instability, effective from September 6, 2011. His claim remains in controversy as less than the maximum benefit available has been awarded. See AB, supra. As delineated above, the Veteran's service connected left knee osteoarthritis has been assigned a 10 percent rating under Diagnostic Code 5260 for limitation of flexion. It has also been assigned separate 10 percent rating for instability under Diagnostic Code 5257, effective from September 6, 2011. In order to afford the Veteran the broadest scope of review, and to ensure that each separate disability involving the knee is evaluated properly, the Board shall consider the service-connected symptomatology involving the left knee under each and every applicable Diagnostic Code that provides rating criteria for evaluating knee disabilities. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claims in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that neither the left knee osteoarthritis or instability warrant a rating in excess of the currently assigned 10 percent under any Diagnostic Code applicable for rating knee disorders, or any combination thereof. 38 C.F.R. § 4.7. In rating the Veteran's left knee disability, the Board notes that there is radiographic evidence of arthritis of the knee. Under Diagnostic Codes 5003 and 5010, traumatic/degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. The criteria for rating extension and flexion of the knee are found at Diagnostic Codes 5260 and 5261, and detailed above. Here, review of the evidence shows that flexion, even with evidence of painful motion, has been at worse limited to 110 degree upon VA examinations in January 2010 and June 2011. Flexion was limited to 115 degrees upon VA examination in January 2012. This does not meet the criteria established for a 20 percent rating under Diagnostic Code 5260, which would require flexion limited to 30 degrees. In fact, it does not even meet the criteria for a noncompensable evaluation, which requires flexion limited to 60 degrees. Extension was full, despite complaints of pain, on VA examination in January 2010 and June 2011, which does not meet the criteria established for a noncompensable rating under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Upon VA examination in January 2012, extension was limited to 5 degrees, with evidence of painful motion and after repetitive testing. There was no evidence of extension limited to 10 degrees to warrant a higher rating. Thus, a rating in excess of 10 percent for limited flexion or an additional separate rating based on actual limitation of extension is not warranted. 38 C.F.R. §§ 4.7, 4.25, 4.71a; See also VAOPGCPREC 23-97 (July 1, 1997, revised July 24, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998); VAOPGCPREC 9-04 (September 17, 2004). The Board has noted the Veteran's complaints of pain experienced in his left knee and thus, considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, even with painful motion (between 40 and 110 degrees) during VA examination in January 2010, the Veteran had range of motion from zero to 110 degrees. Though he was not able to perform repetitive testing due to pain, the examiner estimated that range of motion would not have decreased had he been able to perform the test. Despite painful motion, the Veteran's range of motion was from zero to 110 degrees upon VA examination in June 2011. There was no additional limitations after three repetitions of range of motion. There was no evidence of fatigability, incoordination, or weakness of the knee during VA examination in 2010 or 2011. During VA examination in January 2012, the Veteran's range of motion was from 5 to 115 degrees with pain. Upon repetitive testing, range of motion remained the same. There was no evidence of incoordination, weakened movement or excess fatigability in 2012. The complaints of pain are clearly accounted for in the 10 percent rating as the Veteran's limitation of flexion did not even meet the criteria for even a noncompensable rating (flexion limited to 60 degrees) under Diagnostic Code 5260 or a separate compensable evaluation for limited extension (to 10 degrees). 38 C.F.R. § 4.71a. Turning next to disability due to instability, the Board finds that despite the Veteran's subjective complaints of instability and evidence showing a varus deformity of the left knee, the medical records are devoid of objective findings of instability of the left knee prior to September 6, 2011. Notably, the January 2010 VA examiner found no evidence of instability. There was also no evidence of instability on VA examination in June 2011. The examiner specifically indicated there was "pseudo laxity" with varus stress testing due to pronounced varus deformity, but no actual instability was shown. The first objective finding of mild medial lateral instability is contained in VA outpatient treatment records dated September 6, 2011. The Veteran repeatedly denied recurrent dislocation or subluxation. Accordingly, there is no basis for providing a separate evaluation based on instability under Diagnostic Code 5257 for recurrent subluxation or lateral instability prior to September 6, 2011. 38 C.F.R. § 4.71a. From September 6, 2011, the Veteran's lateral instability has been shown to be no more than mildly disabling. Notably, the September 2011 VA treatment provider indicated that left knee instability was only mild in nature. Upon VA examination in January 2012, there was no evidence of anterior or posterior instability. Medial lateral instability was 1+ (0-5 millimeters). There has been no evidence of moderate instability to warrant a 20 percent rating. The Board has noted the Veteran's complaints of pain experienced in his left knee and thus, has once again considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, are 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, 12 (1996). The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's left knee disability. After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record. There was no evidence of ankylosis of the knee (Diagnostic Code 5256), dislocated or removal of symptomatic semilunar cartilage (Diagnostic Codes 5258, 5259) or impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). 38 C.F.R. § 4.71a. "Staged" ratings, other than what is already in effect, are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Hart, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Extra-Schedular Considerations The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected bilateral knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected knees reasonably describes his disability level and symptomatology. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to a rating in excess of 10 percent prior to January 17, 2012, and in excess of 30 percent thereafter, for the service-connected right knee osteoarthritis is denied. Entitlement to a rating in excess of 20 percent for the service-connected right knee instability is denied. Entitlement to a rating in excess of 10 percent for the service-connected left knee osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for the service-connected left knee instability is denied. REMAND A claim for a TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran argued in his January 7, 2013, Post-Remand Brief that his knees are shown to "functionally restrict him occupationally." The Veteran's representative noted he reduced his hours to 20 per week, which was considered marginal employment, and thus, based on the "severity of all of the Veteran's service connected conditions, an increased evaluation based on [TDIU] is warranted." (Emphasis added.) Consequently, the issue of entitlement to a TDIU has been raised. The only remaining question in this regard is whether referral or remand of this claim is warranted. Recent memorandum decisions of the Court have reasoned that, because the issue of entitlement to a TDIU is a part and parcel of a rating claim that meets the above criteria, and is not a separate claim, the issue of entitlement to a TDIU is properly before the Board for adjudication as part of the appeal of the denial of the rating claim. See Speight v. Shinseki, No. 09-3000, 2011 WL 1557391, at *4 (Vet. App. Apr. 26, 2011) (Moorman, J., mem.); Muma v. Shinseki, No. 09-2734, 2010 WL 4126458 (Vet. App. Oct. 21, 2010) (Kasold, C.J., mem.); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Board finds this reasoning to be persuasive and therefore considers the issue of TDIU to be before it on this appeal. In this case, the increased rating claims for bilateral knee osteoarthritis and instability have been denied. But aside from the bilateral knee disabilities, service connection is currently in effect for: major depressive disorder associated with osteoarthritis of the right knee, 50 percent; bilateral hearing loss, 20 percent; and bilateral metatarsalgia associated with osteoarthritis of the right knee, 10 percent. As claims for increase for major depressive disorder, bilateral hearing loss, and bilateral metatarsalgia are not properly before the Board, it would be premature for the Board to address the TDIU claim in the first instance, given the possible change in ratings upon consideration and adjudication by the RO. See 38 C.F.R. § 4.16(a) (listing criteria for schedular consideration of a TDIU). Further, service connection for major depressive disorder and bilateral metatarsalgia was awarded as secondary to the service-connected right knee osteoarthritis. Under 38 C.F.R. § 4.16(a), disabilities resulting from common etiology are considered one disability, as well as disabilities of one or both lower extremities, including the bilateral factor. Consequently, remand, not referral, of this claim is appropriate here. Accordingly, the claim for entitlement to TDIU is REMANDED for the following action: Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, which was part of his claims for increased ratings for bilateral knee osteoarthritis and instability. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including the issuance of a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs