Citation Nr: 1309764 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-20 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. On and before December 13, 2010 (except during a period of temporary total disability from September 11, 2006 to October 31, 2006), entitlement to a disability rating in excess of 10 percent for right patellofemoral pain syndrome. 2. On and before December 13, 2010 (except during a period of temporary total disability from January 7, 2010 to February 28, 2010), entitlement to a disability rating in excess of 10 percent for left patellofemoral pain syndrome 3. On and after December 14, 2010, entitlement to a disability rating in excess of 20 percent for right patellofemoral pain syndrome. 4. On and after December 14, 2010, entitlement to a disability rating in excess of 20 percent for left patellofemoral pain syndrome. 5. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the left knee. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1999 to October 2001. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which continued the 10 percent evaluations of the Veteran's right and left knee patellofemoral syndrome. This case was previously before the Board in October 2010, when the Board remanded the Veteran's claims in order to further develop the medical evidence of record. The Veteran received an additional VA examination in December 2010, and the RO otherwise obtained the Veteran's outstanding VA treatment records. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board finds that there has been effective compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) While this case was on remand, a November 2011 rating decision of the VA Appeals Management Center (AMC) increased the disability ratings for the Veteran's right and left patellofemoral pain syndrome from 10 percent to 20 percent effective December 14, 2010. The November 2011 rating decision also granted a separate 10 percent evaluation for left knee degenerative arthritis. As the Veteran's original appeal sought appropriate compensation for his bilateral knee disability generally, notwithstanding these increased ratings, these issues remain in appellate status because these ratings do not represent the highest possible benefit, as will be discussed in further detail below. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to service connection for a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. On and before July 11, 2006, the Veteran's right knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a full range of motion, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 2. On and before July 11, 2006, the Veteran's left knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a full range of motion, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 3. From July 12, 2006 to May 7, 2007 (except during a period of temporary total disability from September 11, 2006 to October 31, 2006), the Veteran's right knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a range of motion limited to no worse than 130 degrees of flexion and 35 degrees of extension, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 4. From July 12, 2006 to May 7, 2007, the Veteran's left knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a range of motion limited to no worse than 130 degrees of flexion and 15 degrees of extension, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 5. From May 8, 2007 to December 13, 2010, the Veteran's right knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a range of motion limited by pain to no worse than 90 degrees of flexion and 10 degrees of extension, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 6. From May 8, 2007 to December 13, 2010 (except during a period of temporary total disability from January 7, 2010 to February 28, 2010), the Veteran's left knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than slight knee disability, a range of motion limited by pain to no worse than 90 degrees of flexion and 10 degrees of extension, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 7. On and after December 14, 2010, the Veteran's right knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than moderate knee disability, a range of motion limited by pain and weakness to no worse than 115 degrees of flexion and full extension, no x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 8. On and after December 14, 2010, the Veteran's left knee condition is manifested by symptoms analogous to malunion of the tibia and fibula productive of no worse than moderate knee disability, a range of motion limited by pain and weakness to no worse than 105 degrees of flexion and full extension, x-ray evidence of arthritis, and no clinical evidence showing even slight instability. 9. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's bilateral knee condition are inadequate. CONCLUSIONS OF LAW 1. On and before July 11, 2006, the criteria for an evaluation in excess of 10 percent for right patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 2. On and before July 11, 2006, the criteria for an evaluation in excess of 10 percent for left patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 3. From July 12, 2006 to May 7, 2007 (except during a period of temporary total disability from September 11, 2006 to October 31, 2006), the criteria for an evaluation of 40 percent, but no greater, of the right knee condition based on limitation of extension, have been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 4. From July 12, 2006 to May 7, 2007, the criteria for an evaluation of 20 percent, but no greater, of the left knee condition based on limitation of extension, have been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 5. From May 8, 2007 to December 13, 2010, the criteria for an evaluation in excess of 10 percent for right patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 6. From May 8, 2007 to December 13, 2010 (except during a period of temporary total disability from January 7, 2010 to February 28, 2010), the criteria for an evaluation in excess of 10 percent for left patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 7. On and after December 14, 2010, the criteria for an evaluation in excess of 20 percent for right patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 8. On and after December 14, 2010, the criteria for an evaluation in excess of 20 percent for left patellofemoral pain syndrome have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261, 5262 (2012). 9. The criteria for an initial evaluation in excess of 10 percent for degenerative arthritis of the left knee have not been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2012). 10. The criteria for referral of the Veteran's disabilities on an extra-schedular basis are not met. See 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Those five elements include: 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. The United States Court of Appeals for Veterans Claims (Court) held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In April 2006, VA advised the Veteran of the evidence necessary to support a claim for increased ratings. He was asked to submit or identify relevant evidence. The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence. The Veteran was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file. The Veteran has been provided with a number of VA examinations during the period at issue in this decision. The Board finds that these examinations are adequate in that they were performed by a neutral skilled provider who reviewed the Veteran's pertinent history, interviewed the Veteran, and conducted a complete physical examination. Neither the Veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Increased Ratings for Knee Disabilities Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). If, as is the case here, a Veteran has an unlisted disability, it will be rated by analogy under a disease or injury closely related by functions affected, symptomatology, and anatomical location. See 38 C.F.R. § 4.20 (2012). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Arthritis of a major joint is to be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45 (2012). When limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). Limitation of flexion is rated as follows: flexion limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Limitation of extension is rated as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257; evaluation of knee dysfunction under both codes does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee disability is rated 20 percent disabling; malunion of the tibia and fibula with marked knee 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 (2012). The rating schedule does not define the terms "slight" or "moderate" as used in this diagnostic code. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." See 38 C.F.R. § 4.6 (2012). Clinicians' use of terminology such as "slight," although an element that the Board will consider, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. See 38 C.F.R. §§ 4.2, 4.6 (2012). Turning to the facts in the instant case, on and before December 13, 2010, the Veteran's bilateral knee disabilities have each been assigned a 10 percent evaluation under Diagnostic Code 5262, applicable to impairment of the tibia and fibula resulting in slight knee disability. On and after December 14, 2010, the Veteran's bilateral knee disabilities have been assigned a 20 percent evaluation under Diagnostic Code 5262, applicable to impairment of the tibia and fibula resulting in moderate knee disability. As the below evidence demonstrates, the Veteran's left knee has been variously diagnosed with a joint effusion, patellofemoral stress pain syndrome, chondromalacia of the patella, patellar tendinopathy, and degenerative arthritis. The Veteran's right knee has been variously diagnosed as normal or as having patellofemoral stress pain syndrome. As will be discussed in further detail below, after a discussion of all potentially applicable Diagnostic Codes, the Board finds that the Veteran is most appropriately rated, and receives the highest possible disability rating, under the currently-assigned staged rating under Diagnostic Code 5262, except for the period from July 12, 2006 to May 7, 2007, at which time the Veteran is best compensated under Diagnostic Code 5261, applicable to limitation of extension. As noted in the Introduction, the AMC additionally assigned the Veteran's left knee a 10 percent evaluation under Diagnostic Code 5010, applicable to traumatic arthritis. As the Board will discuss in further detail below, while the Board chooses to leave this existing rating undisturbed, it must note that such rating constitutes pyramiding under 38 C.F.R. § 4.14. Turning to the facts in the instant case, in his February 2006 claim, the Veteran indicated that he experienced constant pain in his knees, and his knees locked and buckled. The Veteran complained that swelling made it so difficult to walk that the Veteran often had to sit or lay down. A January 2006 MRI examination showed a small joint effusion in the left knee, and degenerative inter-substance-type changes of the posterior horn and medial and lateral meniscus, and a small joint effusion in the right knee. At a February 2006 VA orthopedic consultation, the Veteran complained of bilateral knee discomfort with intermittent instability. The clinician noted that the Veteran had flexion to 130 degrees and full extension. The Veteran complained of vague infrapatellar tenderness of the right knee. The clinician observed no effusion of either knee, no heat, and no redness. The clinician diagnosed the Veteran with MRI-suggested medial and lateral meniscal lesions of the right knee. The Veteran received a VA examination on July 12, 2006. The Veteran indicated that the symptoms associated with the left knee were slightly worse than the right. The Veteran indicated that walking for five minutes or greater, kneeling, and squatting caused him to experience pain in the knees bilaterally. The Veteran experienced stiffness in the knees in the morning that improved as the day progressed, but the pain in his knees worsened as the day progressed. The Veteran noted swelling in the knees bilaterally. The Veteran indicated that he experienced fatigability in both knees. Upon physical examination, the examiner noted that the Veteran had some stiffness with walking, but he was otherwise strong and steady. The examiner noted no limitations on the Veteran's activities of daily living. The Veteran denied experiencing flare-ups of his condition. The examiner noted no edema, and the Veteran did not complain of pain on the anterior aspects of the bilateral knees. The examiner noted slight tenderness on the medial lateral aspect of the knees. The Veteran had active flexion in the right knee to 130 degrees (130 degrees upon repeated motion) and active extension to 15 degrees (32 degrees upon repeated motion). The Veteran had active flexion in the left knee to 130 degrees (130 degrees upon repeated motion) and active extension to 5 degrees (15 degrees upon repeated motion). In each case, the Veteran's motion was limited by pain. Bilaterally the Veteran had passive flexion to 140 degrees and passive extension to zero degrees. The Veteran could squat approximately half-way due to pain in the knees. The examiner diagnosed the Veteran with left knee joint effusion and right knee degenerative changes of the medial lateral meniscus with joint effusion. The Veteran underwent right knee arthroscopic surgery in September 2006. There was no derangement found, but there was redundant synovium noted. Treating surgeons did not consider the right knee to be significantly impacted; in other words, there was no structural damage that had been suggested on MRI examination. The menisci were normal to visualization and probing. The Veteran is in receipt of a temporary evaluation of 100 percent effective as of the date of the surgery. A 10 percent evaluation was assigned from November 1, 2006. The Veteran received an additional VA examination in May 2007. The Veteran complained of generalized stiffness in the knees in the early morning, but his knees loosened and felt better after light activity. Activities such as standing for five minutes or driving caused the Veteran to feel increased pain. The Veteran complained of generalized fatigability, but he denied swelling. The examiner observed the Veteran to have generalized stiffness but was otherwise strong and steady. The examiner observed that the Veteran was able to care for himself. Instead of flare-ups, the Veteran complained of chronic pain. The examiner observed no swelling or atrophy. The Veteran complained of tenderness and pain underneath the knee caps of the patella, and pain was particularly noted with pushing the patella into the femoral groove. The Veteran could stand on his toes and heels. The Veteran could flex his left leg to 100 degrees and extend to zero degrees. The Veteran could flex his right leg to 90 degrees and extend it to zero degrees, or 10 degrees when standing. The Veteran complained of pain throughout the range of motion. Repeated motion testing revealed the same results. The examiner diagnosed the Veteran with bilateral patellofemoral stress pain syndrome. In September 2007, the Veteran complained of right knee pain that occasionally caused a limp. The Veteran's lower extremities had a limited range of motion due to knee pain, with the right worse than the left, and the Veteran had 3/5 muscle strength. A May 2008 knee x-ray found that the Veteran had an unremarkable bilateral knee survey. A February 2009 MRI examination indicated that the Veteran's left knee had chondromalacia of the patella, degenerative intra-substance-type changes to the medial and lateral meniscus, and a small joint effusion. September 2009 and July 2009 VA clinical records indicate that the Veteran had bilateral knee discomfort. The left knee could flex to 140 degrees and extend to 5 degrees. The examiner observed mild crepitus, and no joint line tenderness. The Veteran had tenderness over the medial facet of the patella and of the lateral and patellar tendon. The clinician indicated that radiography was unremarkable. The examiner indicated that the Veteran did not have chondromalacia patella of the left knee; instead, the Veteran had patellar tendinopathy. In January 2010, the Veteran underwent a left knee tendon repair. Surgeons found degenerative inter-substance change in the medial and lateral menisci, and chondromalacia patella. The patellar ligament was repaired. The Veteran is in receipt of a temporary evaluation of 100 percent effective as of the date of the surgery. A 10 percent evaluation was assigned from March 1, 2010. The Veteran received an examination for VA compensation and pension purposes in June 2010. The Veteran indicated that he experienced pain, weakness, stiffness, swelling, heat, redness, fatigability, and a lack of endurance. The Veteran complained of experiencing moderate flare-ups of pain every one to two days, with each flare-up lasting one to two days. Activity precipitated the Veteran's flare-ups, which caused a moderate impairment on the Veteran's daily activities. The Veteran did not require bed rest. Upon physical examination, there was no ankylosis of the knee joints. The left knee had flexion to 90 degrees and extension to 10 degrees. The right knee had flexion to 100 degrees and extension to 10 degrees. The Veteran had no additional loss of range of motion upon repeated testing. The Veteran complained of pain, weakness, and a lack of endurance in the left knee, but he denied fatigue or incoordination. The Veteran complained of pain and a lack of endurance in the right knee, but he denied fatigue, weakness, or incoordination. In the left knee, the examiner observed objective evidence of painful motion, weakness, tenderness, and guarding of movement; the examiner did not observe edema, effusion, instability, redness, heat, or abnormal movement. In the right knee, the examiner observed objective evidence of painful motion, tenderness, and guarding of movement; the examiner did not observe edema, effusion, instability, weakness, redness, heat, or abnormal movement. The Veteran's gait was unsteady with a definite limp. The Veteran had functional limitations on all prolonged activities and activities involving walking on uneven surfaces. The Veteran had no objective signs of abnormal weight bearing. A left knee x-ray showed internal fixation of the patella, but no evidence of arthritis or degenerative changes. The examiner diagnosed the Veteran with patellofemoral pain syndrome of the left knee. The Veteran underwent a VA examination in December 2010. The Veteran indicated that he developed pain in his right knee as a result of an alteration in his gait. The Veteran complained of a constant, dull ache in the knees bilaterally, which he rated as a severity of 7 out of 10. The Veteran complained of weakness, tenderness, and stiffness in the knees bilaterally. Flare-ups were precipitated by weather, overuse, prolonged walking, standing, sitting, and squatting. The Veteran's pain increased to an 8 or 9 out of 10 during flare-ups. Medications provided the Veteran with minimal relief of his symptoms. The Veteran estimated that flare-ups caused him to lose approximately half of his functional ability. Flare-ups lasted 2 to 3 hours, and they occurred daily. The Veteran indicated that he could walk for only about 5 minutes at a time. The Veteran stated that he could only stand for 2 or 3 minutes before he had to move. The examiner noted that any activity involving walking was difficult for the Veteran, and toileting was difficult because he had difficulty squatting. Upon physical examination, the Veteran had 115 degrees of flexion in the right knee and 105 degrees (rounded up from 104 degrees) of flexion in the left knee, limited by pain. The Veteran had full extension bilaterally. The Veteran had no additional limitations of motion upon three repetitions. The Veteran's gait was antalgic. There were no abnormalities indicating abnormal weight-bearing, there was no evidence of ankylosis, and there was no leg length discrepancy. MRI examination of the left knee demonstrated degenerative inter-substance changes in the medial and lateral menisci and chondromalacia patella. An MRI examination of the right knee was unremarkable. The examiner observed moderate malunion of the tibia and fibula of the left knee. The examiner diagnosed the Veteran with degenerative arthritis of the left knee, and patellofemoral syndrome of the bilateral knees. In August 2012, a VA clinician observed that the Veteran's knees had mild crepitus bilaterally and some discomfort at full flexion and in forced extension. The clinician observed no swelling or thickening. The clinician noted that a 2009 MRI report showed evidence of predominant degenerative substances and a small joint effusion and chondromalacia of the patella. Turning now to an application of the relevant law and regulations to the facts in the instant case, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees. There is no evidence of ankylosis, dislocated semilunar cartilage with frequent locking and effusion into the joint, removal of the semilunar cartilage, or genu recurvatum. Thus, Diagnostic Codes 5256, 5258, 5259, and 5263 do not apply. See 38 C.F.R. § 4.71a (2012). With these diagnostic codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the diagnostic codes that are potentially applicable to the Veteran's bilateral knee disability: 5003 (applicable to degenerative arthritis), 5260 (applicable to limitation of flexion of the leg), 5261 (applicable to limitation of extension of the leg), and 5262 (impairment of the tibia and fibula). The Board will first evaluate whether a greater rating is available to the Veteran under the Diagnostic Codes based on limitation of motion of the leg: 5260 and 5261. With regard to flexion, in his left knee, the Veteran demonstrated his worst range of motion in June 2010, at which time he could flex his knee to 90 degrees. The Veteran's worst flexion in the right knee occurred in May 2007, at which time he could flex to 90 degrees. At no time during the course of the appeal has the Veteran's knee flexion warranted a compensable rating-that is, it has not been limited to 45 degrees or fewer. Accordingly, the Veteran's limitation of knee flexion does not warrant a compensable evaluation at any time during the course of the appeal, and the Board will not rate the Veteran's bilateral knee disability on this basis. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). The Board will next evaluate whether a greater rating is available to the Veteran based on limitation of extension. On July 12, 2006, the Veteran demonstrated active extension in the right knee limited to 15 degrees by pain, and active extension in the left knee limited to 5 degrees by pain. Repeated testing at this time indicated that the Veteran had active extension limited in the right knee to 35 degrees (rounded up from 32 degrees), and active extension in the left knee limited to 15 degrees. While the Board acknowledges that the Veteran had a full range of passive extension in his bilateral knees during this examination, taking into account the Veteran's limitation of motion by pain with repeated motion, the Board finds that as of this date, the Veteran's limitation of extension in the right knee warrants a 40 percent evaluation in the right knee (for limitation of extension to greater than 30 degrees but not greater than 45 degrees), and a 20 percent evaluation in the left knee (for limitation of extension to 15 degrees). The Board finds that rating the Veteran's knee condition under Diagnostic Code 5261 during this period rather than under the currently-assigned Diagnostic Code 5262 results in a greater level of compensation for the Veteran for this period. In February 2006, the Veteran had a full range of extension. At the time of his VA examination on May 8, 2007, the Veteran had a full range of extension. As of this date, the Veteran's knees no longer warrant a compensable evaluation based on limitation of extension. In June 2010, the Veteran's extension was limited to 10 degrees bilaterally (warranting a 10 percent evaluation) and in December 2010, the Veteran's extension was normal bilaterally. Accordingly, since the Veteran's demonstration of a full range of extension at the time of his May 8, 2007, VA examination, the Veteran's limitation of knee extension has not warranted an evaluation in excess of the currently-assigned 10 percent rating at any time during the course of the appeal, and the Board will not rate the Veteran's knee disability on this basis during this time. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2012). VA examiners have noted the Veteran's complaints such as pain and weakness, and the Board has assigned the Veteran with greater rating based on limitation of extension as a result of these complaints. While the Board accepts the contentions of the Veteran that his bilateral knee disability causes him to experience significant pain, the Board has taken this into account in its above discussion of the range of motion of the Veteran's knees. The rating schedule does not require a separate rating for pain itself. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Thus, a higher evaluation based on functional loss is not warranted. With regard to the Veteran's left knee, when x-ray evidence of degenerative arthritis is presented but the associated loss of range of motion is noncompensable, a 10 percent disability rating is warranted under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). In this case, the Veteran's left knee has evidence of degenerative arthritis, but, as noted above, there has not been a compensable loss of range of motion at any time during the appeal period. A 10 percent disability rating, but no greater, is thus warranted for arthritis of the left knee under Diagnostic Code 5003 throughout the appeals period. The Veteran's right knee, which has never been diagnosed with degenerative arthritis, is not appropriately rated under this diagnostic code. As a disability rating under this Diagnostic Code does not afford the Veteran with the possibility of a rating in excess of 10 percent at any time during the appeal period, the Board finds it to be a less favorable rating code to the Veteran than the currently-assigned staged rating under Diagnostic Code 5262. With respect to the appropriateness of the AMC's award of a separate 10 percent rating of the Veteran's left knee under Diagnostic Code 5010, applicable to traumatic arthritis (and rated as analogous to degenerative arthritis), the Board notes that the Veteran is already in receipt of a disability rating under Diagnostic Code 5262, applicable to impairment of the tibia and fibula, which is based on the Veteran's painful and occasionally limited motion of the knees. While the Board will leave the award of a separate 10 percent rating based on traumatic arthritis undisturbed, a rating in excess of 10 percent is unavailable to the Veteran under the diagnostic codes applicable to arthritis, because such a rating constitutes impermissible pyramiding, given the Veteran's existing rating based on limited motion under Diagnostic Code 5262. With regard to whether a greater rating is available to the Veteran under Diagnostic Code 5262 (applicable to impairment of the tibia and fibula), the evidence does not at any time demonstrate nonunion of the tibia and fibula with loose motion, requiring a brace. A 40 percent evaluation under Diagnostic Code 5262 is therefore unwarranted at any time. The Board similarly finds that a 30 percent evaluation is unwarranted because the evidence does not demonstrate malunion of the tibia and fibula with "marked" knee disability. The December 2010 examiner characterized the Veteran's malunion as moderate in degree. Otherwise, the Board finds that no clinicians have diagnosed the Veteran with malunion of the tibia and fibula, nor have they described the Veteran's knee symptoms as analogous to such malunion. Other than for the period from July 12, 2006 to May 7, 2007, when the Board has determined that the Veteran is better evaluated under Diagnostic Code 5261, applicable to limitation of extension of the knee, the Board finds that the evidence of record, including the Veteran's subjective complaints and the results of range of motion testing, does not support a finding that the Veteran had a greater than "slight" knee disability under Diagnostic Code 5262 at any time on or before December 13, 2010. The Board similarly finds that the evidence of record, including the Veteran's subjective complaints and the results of range of motion testing, does not support a finding that the Veteran had a greater than "moderate" knee disability under Diagnostic Code 5262 at any time on or after December 14, 2010. Knee Instability As noted above, given the Veteran's bilateral knee disability is currently evaluated based primarily on limitation of motion under Diagnostic Code 5262 (rather than instability), a separate evaluation may be provided for knee instability. Recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in order to ensure that its decisions are equitable and just. See 38 C.F.R. § 4.6 (2012). Clinicians' use of terms such as "moderate" and "severe," although an element that the Board will consider, is not dispositive of the issue. A February 2006 VA treatment record indicates that the Veteran had no collateral ligament instability of the knees. In a July 2006 VA examination, the Veteran complained of daily problems with hyperextension and buckling in the knees bilaterally, particularly when walking. The Veteran denied experiencing any locking. The Veteran did not use any assistive devices. The examiner noted no valgus or varus stress abnormality. Apley's test, McMurray's test, and Lachman's test revealed no slippage or instability. In May 2007, the Veteran indicated that he rarely experienced locking, but he experienced feelings of instability about every other day. The Veteran had been prescribed knee braces, but he was not wearing them at the time of the examination. Apley's test, McMurray's test, and Lachman's test revealed no slippage or instability. No varus or valgus stress abnormality was noted. The examiner observed no instability of the knee. In September 2009, the Veteran complained of intermittent knee instability. Upon examination of the Veteran's left knee, the examiner noted that the patella was "not unstable," Lachman's test was negative, and the collateral ligaments were normal. In a June 2010 examination for VA purposes, the Veteran complained of instability, giving way, and locking. The Veteran wore knee braces. The Veteran denied experiencing any episodes of dislocation, and he denied experiencing any recurrent subluxation or abnormal movement of the bone. The Veteran had normal varus/valgus stress test, tests of the anterior cruciate ligaments, and tests of the posterior cruciate ligaments. McMurray's test was normal bilaterally. The examiner did not observe instability or abnormal movement in either knee. In December 2010, the Veteran complained of occasional instability in the left knee, with the knee buckling occasionally. The Veteran wore braces on the bilateral knees, but he did not otherwise use a crutch, cane, or walker. The examiner observed no instability or recurrent subluxation of either knee. Anterior and posterior drawer testing was negative, and McMurray's test was negative. Applying the law to the facts in the instant case, the Board finds that the evidence does not support the award of separate ratings for bilateral knee instability. The Board notes that none of the Veteran's VA examiners or clinicians have characterized the Veteran's knees as unstable, even to a mild degree. Indeed, while the examiners have acknowledged the Veteran's contentions of instability, clinical instability tests throughout the appeal period have yielded consistently normal results. The Board acknowledges the Veteran's contentions regarding the severity of his condition. Given the consistent lack of clinical findings of instability, however, the Board places greater probative weight on the medical evidence of record than on the Veteran's subjective accounts of instability. Accordingly, the Board finds that separate ratings based on knee instability are not warranted at any time throughout the period on appeal. Extra-Schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, 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 to be inadequate, the Board must determine whether the Veteran's 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 extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for the Veteran's bilateral knee condition based on limited motion, instability, and impairment of the tibia or fibula, but the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluations for his levels of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for the service-connected disabilities are adequate. Referral for extra-schedular consideration is not warranted. Further inquiry into extra-schedular consideration is moot. See Thun, supra. ORDER On and before July 11, 2006, a disability rating in excess of 10 percent for right patellofemoral pain syndrome is denied. On and before July 11, 2006, a disability rating in excess of 10 percent for left patellofemoral pain syndrome is denied. From July 12, 2006 to May 7, 2007, a 40 percent disability rating of the right knee, but no greater, based on limitation of extension is granted, subject to the laws and regulations governing the award of monetary benefits. From July 12, 2006 to May 7, 2007, a 20 percent disability rating of the left knee, but no greater, based on limitation of extension is granted, subject to the laws and regulations governing the award of monetary benefits. From May 8, 2007 to December 13, 2010, a disability rating in excess of 10 percent for right patellofemoral pain syndrome is denied. From May 8, 2007 to December 13, 2010, a disability rating in excess of 10 percent for left patellofemoral pain syndrome is denied. On and after December 14, 2010, a disability rating in excess of 20 percent for right patellofemoral pain syndrome is denied. On and after December 14, 2010, a disability rating in excess of 20 percent for left patellofemoral pain syndrome is denied. An initial disability rating in excess of 10 percent for degenerative arthritis of the left knee is denied. REMAND The Court has held that the issue of a TDIU is part of an increased rating claim when a request for a TDIU is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board finds that possible entitlement to a TDIU has been raised by the record, and the claim must be remanded for additional evidentiary development. Turning to the facts in the instant case, in the Veteran's July 2006 examination, the Veteran stated that he was last employed as a supervisor of children. The Veteran performed this job for nine months, but he had to stop working because of pain in his knees. The examiner noted that the Veteran would have difficulty performing physical labor, but this impairment would not render the Veteran totally unemployable. In June 2010, the Veteran was employed as a security guard. In December 2010, the VA examiner noted that the Veteran was not currently working. The Veteran has not been provided with an examination to determine the effects of the Veteran's service-connected disabilities on his employability, and such an examination should be performed on remand. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination with an examiner of appropriate expertise to evaluate the effects of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The examiner should offer an opinion regarding the Veteran's ability to procure and maintain gainful employment consistent with his education and occupational experience. This opinion should be offered irrespective of age and any nonservice-connected disorders. The claims file must be made available for review and the examiner's report should reflect that such review occurred. Specifically, the examiner is requested to offer an opinion as to whether the Veteran's service-connected disabilities are alone or in concert so severe as to preclude substantially gainful employment. If the Veteran's nonservice-connected disabilities preclude substantially gainful employment, such should be stated. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. If the examiner determines that he is unable to provide a requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 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 2002 & Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs