Citation Nr: 1313735 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 06-13 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the right knee. 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from October 1983 until his retirement in April 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim for service connection for patellofemoral syndrome in each knee. A 10 percent rating was assigned for each knee. The claim was remanded in November 2006, August 2009, April 2010, and August 2012. In January 2013, the RO granted a noncompensable rating for left knee instability, effective November 7, 2012. FINDINGS OF FACT 1. Since May 1, 2004, when service connection became effective, the Veteran's patellofemoral syndrome of the right knee has been manifested by complaints of severe pain of the knee joint and clicking, with objective findings of extension limited at most to 5 degrees and flexion limited at most to 80 degree, the beginning of reported pain. There is clinical evidence of arthritis. Flare-ups have not resulted in incapacitation. There have been no subjective or objective medical evidence of subluxation, instability, locking, dislocation of semilunar cartilage, impairment of the tibia or fibula, or ankylosis. 2. Since May 1, 2004, when service connection became effective, the Veteran's patellofemoral syndrome of the left knee has been manifested by complaints of severe pain of the knee joint and clicking, with objective findings of extension limited at most to 5 degrees and flexion limited at most to 90 degrees, the beginning of reported pain. There is clinical evidence of arthritis. Flare-ups have not resulted in incapacitation. There have been no subjective or objective medical evidence of locking, dislocation of semilunar cartilage, impairment of the tibia or fibula, or ankylosis. 3. Since February 13, 2007, the date of VA examination, the Veteran's left knee disability has resulted in mild instability of the knee joint. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5014, 5260 (2012). 2. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5014, 5260 (2012). 3. Since February 13, 2007, the criteria for a separate 10 percent rating for mild left knee instability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that 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. 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, November 2006 and February 207 letters, sent after the initial June 2004 rating decision, advised the Veteran of the evidence and information necessary to substantiate his increased rating claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, both letters advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the November 2006 and February 2007 letters were issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the letters were issued, the Veteran's claims were readjudicated in the July 2007 supplemental statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file. Additionally, the Veteran was afforded VA examinations in June 2004, February 2007, May 2010, and November 2012 in order to adjudicate his increased rating claims. In this regard, the Board finds that the proffered opinions regarding the severity of the Veteran's knee disabilities were based on an interview with the Veteran, a review of the record, and a full examination. As such, the Board finds that the opinions proffered by the VA examiners are sufficient to decide the Veteran's claims. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal, but did not note the specific criteria necessary to substantiate the increased rating claim. The VLJ did inquire as to any outstanding evidence. And, the Veteran volunteered his treatment history and symptoms during the appeal period, thus fully describing the nature and severity of his knee disabilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the Veteran's claims were remanded in November 2006, August 2009, April 2010, and August 2012 in order to obtain outstanding VA, and private treatment records, and to afford him VA examinations with opinions. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2012), however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the wrist is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each group of minor joints so affected. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012). Diagnostic Code 5010, for rating traumatic arthritis, and DC 5014, for rating osteomalacia, directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003, 5010, 5014 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2012). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1 (2012). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6(2012). A claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. Evaluation of a knee disability under both of those diagnostic codes does not amount to pyramiding. However, a separate rating must be based on additional compensable level of disability. 38 C.F.R. § 4.14 (2012); VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where 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. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). The Veteran's right and left knee disabilities have both been rated as 10 percent disabling under Diagnostic Code 5014. DC 5014 pertains to osteomalacia, and is rated pursuant to limitation of motion or under the criteria pertaining to arthritis. Diagnostic Codes 5260 and 5261, which pertain to limitation of flexion and extension of the leg, are also potentially applicable in this instance. 38 C.F.R. § 4.71a , DCs 5260, 5261 (2012). The Veteran's left knee instability has been rated as noncompensable under DC 5257, which pertains to instability, and that code is also applicable in this instance. In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5258 (dislocation of semilunar cartilage), 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. Specifically, MRI and X-ray evidence does not reflect a finding of dislocation of the semilunar cartilage or impairment of the tibia or fibula and no genu recurvatum has been diagnosed. Finally, there have been no findings of ankylosis of the knee. Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (2012). Under DC 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Turning to the evidence of record, a February 2004 private x-ray showed no fracture or dislocation of either knee. The impression was normal right and left knee. On June 2004 VA examination, the Veteran reported knee discomfort when going up and down the stairs, squatting, kneeling, and standing or sitting for long periods of time. The condition did not result in time off of work, incapacitation, or functional impairment. Physical examination of the knees was normal. Range of motion testing was 0-110 degrees bilaterally, with pain at 100 degrees of flexion. Other than pain, there was no other functional impairment on repetition. Instability testing was normal, bilaterally. X-ray was of the knees was within normal limits. The diagnosis was symptomatic bilateral patellofemoral syndrome. In June 2005, the Veteran stated that he had constant knee pain and the top of the knee bones were always sore. In April 2006, the Veteran stated that had been told he had no more cartilage in his knees and that was causing his constant knee pain. At his September 2006 hearing before the Board, the Veteran stated that his knees caused excruciating pain. He could hear them click and pop. By the end of the day, he had to rest and stay off of his feet. On February 2007 VA examination, the Veteran stated that his knees were sore and tender to touch. They hurt when stooping or when standing for long periods of time. He used heat therapy at home daily and NSAIDS when the pain was severe. He could stand for fifteen to thirty minutes and could walk for less than one mile. Range of motion testing showed flexion to140 degrees, with pain at 100 degrees, and extension from "0 to -20" degrees, bilaterally. There was evidence of crepitation and clicks and snaps, but no indication of instability, bilaterally. There was subpatellar tenderness, bilaterally. X-rays showed early degenerative osteoarthritis of the knees. The diagnosis was degenerative joint disease of the knees. The disability had significant effects on the Veteran's ability to be mobile and to lift and carry due to weakness, fatigue, pain, and decreased strength. Driving was moderately impaired due to the knee disability. Due to pain, he could not stoop repetitively, he could not run, and he could not stand for prolonged periods of time. Prolonged standing or running would cause swelling which decreased the range of motion, according to the Veteran, by 50 percent. VA treatment records reflect that in March 2007, the Veteran displayed clicking of the knees. Radiographic studies showed mild narrowing of the medial joint compartment. A patellar grind test was positive for chondromalacia patella. He was advised to complete a general knee strengthening program. Naval records dated from 2004 to 2009 are negative for complaints or treatment for a knee disability. On May 2010 VA examination, the Veteran's bilateral knee symptoms included pain, weakness, and evening swelling. There was instability of the left knee, but no episodes of dislocations or subluxation. His right knee would make a crunching sound. He reported flare-ups that were severe every two to three weeks. Flare-ups occurred after walking, stair climbing, or being on his feet. The condition was affecting his ability to be with his family, to play sports, and to complete his job. Physical examination revealed crepitation, grinding, and instability of the left knee. There was tenderness, abnormal movement, and guarding. The instability was mild. Range of motion testing was 0-120 degrees, bilaterally. There was objective evidence of pain on motion but no further additional limitations after three repetitions. X-rays of the knees showed no acute abnormality. In the past year, he had lost one week off of work due to knee pain. The diagnosis was patella-femoral syndrome of the knees. His knee disabilities had significant effects on his occupation to include social interactions, decreased mobility, problems with lifting and carrying, pain, and decreased strength. The examiner determined that the Veteran's knee disabilities did not render him unemployable. He had worked in technology support for five to ten years and although he experienced pain and discomfort that caused slowed mobility, they did not prevent employment because he was able to work with accommodations. He did not use an assistive device that would interfere with employment. The examiner did not find indication of a decreased disability picture from the 2007 VA examination. The examiner concluded that the severity of the disability was magnified above the demonstrated findings on examination. VA treatment records reflect that in October 2010, range of motion was 5-145 with minimal crepitation. There was joint line tenderness on the left and right. There was medial facet tenderness bilaterally. The ligaments were stable. X-rays showed minimal degenerative changes. At his February 2010 hearing, the Veteran stated that by the afternoon his knees were so painful that he had to get off of his feet. He was on his feet a lot during the day. He had been told there was no cartilage in his knees but he was too young for surgery. He was treating himself with over-the-counter medication. In March 2011, the Veteran stated that he was not seeking a TDIU. He stated that his knee pain was interfering with his daily activities due to severe pain. He had recently undergone cortisone injections for relief. VA treatment records reflect that in December 2011, the Veteran reported that the second cortisone injection did not help his knees. An MRI showed internal degeneration with no tear of the meniscus. There was thinning of the patellar cartilage and a popliteal cyst on the right knee. The assessment was bilateral osteoarthritis, no surgically treatable lesion. In January 2012, the Veteran stated that his knees were doing well with no clicking. A second dose of Euflexxa was given. In May 2012, the Veteran submitted several lay statements in support of his claim to the effect that the Veteran had been observed to have to stop certain tasks and rest due to knee pain, and had been observed leaning against walls to rest while walking. On November 2012 VA examination, the Veteran reported that his right knee had buckled and given way multiple times. He reported that his pain had worsened and although he was relatively pain free upon awaking, by the end of the workday, it was almost too painful to walk. The pain was a daily throbbing pain that could become sharp and needle-like. At night he had to rest and could not take a walk with his family. Range of motion testing of the right knee was 0-140 degrees, with pain beginning at 80 degrees. Range of motion testing of the left knee was 0-130 degrees, with pain beginning at 90 degrees. On repetitive testing, the right knee could flex to 140 degrees and the left knee could flex to 130 degrees, there was no change in extension. Repetitive testing resulting in less movement than normal, incoordination, and pain on movement, bilaterally. There was tenderness to palpation of the joint line tissues. Muscle strength was 4/5 on flexion and 5/5 on extension. Joint stability testing was normal, bilaterally. There was no indication of subluxation. There was no evidence of a meniscal condition or meniscal surgery. The Veteran's functional impairment was limited to climbing stairs and ladders, and avoiding kneeling and repetitive stooping and squatting. That did not affect his work. He was independent in all of his activities of daily living. He was visibly uncomfortable with all knee maneuvers but the testing was negative. There was mild laxity on the left with twisting which was in agreement with the December 2011 MRI. Extension and flexion triggered minor pain. Crepitus was noted. For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2012). In this case, range of motion testing on VA examination and in the VA and private treatment records revealed extension limited at most to 5 degrees and flexion limited at most to 80 degrees. These findings take into account the earliest point at which the Veteran reported experiencing pain on repetition. Neither of those findings, however, warrant a compensable rating under either DC 5260 or 5261. Thus, an increased rating based upon limitation of motion is not warranted in this case. There are two exceptions to be addressed. First, although the Veteran stated that on flare-up he had 50 percent less flexion, such reports do not correlate with the multiple VA examinations that were taken throughout the appeal period and which show that on repetitive testing, knee flexion was not limited to 45 degrees, and knee extension was not limited to 10 degrees, to warrant compensable ratings. The same is true when reviewing the treatment records. Thus, although the Veteran might experience reduced motion on flare-up, the evidence demonstrates that his overall disability picture results in flexion greater than 45 degrees. Even if he had 50 percent of his normal flexion on flare-up, and he was able to actually flex to between 110 to 140 degrees on each examination, he would not be entitled to a higher rating. Next, the Board notes that on February 2007 VA examination, the VA examiner found that the Veteran had extension limited to -20, which would possibly warrant a higher rating. However, the Board finds that when reviewing that range of motion finding with the other three VA examinations and the VA treatment records taken prior to and subsequently, it is inconsistent. On all other examinations, his extension was either normal, 0, or limited at most to 5 degrees. The 2007 finding is also inconsistent with the Veteran's reported symptoms, as he has not stated that he cannot fully extend his knee, or that his knee extension is greatly limited, or that he experiences hyperextension of the knee. Therefore, the Board does not find that range of motion to be probative due to its inconsistencies with the record. Accordingly, the Board finds that it alone does not warrant separate or higher ratings based upon limitation of extension and is offers little weight in this analysis. Next, the Board finds that a separate rating is warranted for the left knee under DC 5257. DC 5257 provides for a 10 percent rating for slight, a 20 percent for moderate, and a 30 percent for severe recurrent subluxation or lateral instability. In this case, the first indication of mild instability of the left knee is on the February 13, 2007, VA examination. Thereafter, mild left knee instability was noted on May 2010 and November 2012 VA examinations. Thus, a 10 percent rating is warranted for mild instability of the left knee since February 13, 2007, but no earlier. A rating higher than 10 percent is not warranted because at no time has his knee instability been described as, or demonstrated as, moderate in degree. With regard to the right knee, at no time during the appeal period has there been a finding of any instability, thus a separate rating for the right knee is not appropriate. Finally, DCs 5003 and 5010, and 5014, which pertain to degenerative and traumatic arthritis, and osteomalacia, are for consideration. The Veteran is currently in receipt of two 10 percent ratings under 5014 for noncompensable limitation of motion. The Board finds that a higher 20 percent rating is not warranted for either knee because although there is X-ray evidence of involvement of 2 or more major joints, the evidence does not support a finding of occasional incapacitating episodes. 38 C.F.R. § 4.71a, DC 5003, 5010, 5014 (2012). The Veteran has stated that he has taken one week off of work over a 12 month period due to his knee disabilities and did not describe such as due to incapacitation. Rather, all four VA examinations state that there was no history of incapacitating episodes related to the knee disabilities. The Veteran has repeatedly stated that his routine disability picture involves limited pain in the morning with increasing pain in the late day, resulting in having to rest his legs. He has mentioned having flare-ups that were severe every few weeks, but has not stated that they are incapacitating. Nor does the medical record demonstrate treatment for incapacitating knee exacerbations. Accordingly, the evidence does not demonstrate the presence of knee exacerbations that have resulted in incapacitation, as none have been described or documented, such that a higher 20 percent rating is not warranted. The Board has determined that the Veteran is entitled to no more than 10 percent disability ratings for left and right knee disabilities, and a separate 10 percent rating for left knee instability since February 13, 2007, under the applicable criteria. The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the effect of pain and weakness on the basis of limitation of motion has been considered because although VA examinations and treatment records have shown that the Veteran experiences pain on motion and flare-ups on activity, there is no evidence to suggest that the functional loss is the equivalent to flexion less than 45 degrees or extension less than 10 degrees, such that separate ratings would be applied or a higher rating would be applied. Evidence of pain is an important factor for consideration. However, the United States Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. Thus, the Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to a higher rating based upon additional pain or weakness on repetitive testing. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for TDIU has not been raised by the record. Specifically, the Veteran works full-time and has not stated that his knee disabilities preclude employment. In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected knee disabilities with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability levels and symptomatology for his service-connected knee disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's service-connected knee disabilities may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that throughout the pendency of the appeal, the Veteran's right and left knee disabilities have not warranted a rating in excess of 10 percent. However, his left knee instability has warranted a 10 percent rating since February 13, 2007. ORDER A rating in excess of 10 percent for patellofemoral syndrome of the right knee is denied. A rating in excess of 10 percent for patellofemoral syndrome of the left knee is denied. Since February 13, 2007, a separate 10 percent rating for left knee instability is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs