Citation Nr: 1320330 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 96-02 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to a rating in excess of 20 percent for chondromalacia of the left patella. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from December 1977 to April 1978 and from October 1979 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied a compensable rating for chondromalacia of the left knee. During the pendency of this appeal, the RO granted a 20 percent rating for chondromalacia of the left knee, effective February 11, 1994, the date of the appellant's claim. In a July 2004 rating decision, the RO granted the appellant a separate 10 percent rating for osteoarthritis of the left knee. In an April 1999 decision, the Board denied entitlement to a rating in excess of 20 percent. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 1999, the Court granted a joint motion to vacate and remand this matter to the Board for further development and readjudciation. The Board remanded this matter to the RO in August 2000 to afford the appellant a personal hearing before a Veterans Law Judge. The appellant withdrew his hearing request in June 2002. The Board remanded the claim in December 2003, December 2004, April 2008, and August 2008. In March 2009, the appellant testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. In a May 2009 decision, the Board denied the claim for an increased rating. The appellant again appealed to the Court. In an April 2010 Memorandum Decision, the Court vacated the May 2009 Board decision and remanded the matter to the Board for readjudication consistent with the April 2010 decision. In March 2011 and November 2012, the Board remanded the claim. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remands and will proceed to adjudicate this appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU has been raised during the pendency of the appeal, but it has not been developed or adjudicated by the RO or AMC to date. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased or initial rating claim when such a claim is raised by a veteran or otherwise reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the 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. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the period on appeal, the appellant's chondromalacia of the left patella has been manifested by mild to moderate recurrent subluxation and lateral instability. CONCLUSION OF LAW The criteria for entitlement to a rating greater than 20 percent for the service-connected chondromalacia of the left patella have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5299-5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 claim. The appellant 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 appellant). 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 claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. Where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, VA did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claim. Appropriate notice was provided in June 2003, January 2005, and May 2008. The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. In a March 2011 letter, VA requested the appellant to complete and return enclosed Authorization and Consent to Release Information forms for any treatment for his service-connected chondromalacia of the left patella, in compliance with the March 2011 remand. Private medical records identified by the appellant have been obtained, to the extent possible, including records from the Tri-County Medical Clinic and Dr. F.M.W. The AOJ also reviewed the records from Tri-County Medical Clinic, Dr. F.M.W., and VA treatment records, in the February 2013 supplemental statement of the case, in compliance with the November 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in October 1994, July 1998, March 2006, June 2010, and February 2012. The Board also provided the appellant with a VA opinion in June 2004. The examinations are adequate because they are based on thorough examinations, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's service-connected chondromalacia of the left patella is evaluated under Diagnostic Code (DC) 5299-5257 and rated by analogy to DC 5257. The specifically diagnosed knee condition was not listed, and so an equivalent Code was selected based on the anatomical location, functions affected, and symptomatology. 38 C.F.R. § 4.20. Slight recurrent subluxation or lateral instability warrants a 10 percent evaluation; moderate recurrent subluxation or lateral instability warrants a 20 percent evaluation; and severe recurrent subluxation or lateral instability warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in 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 appellant's claim for an increased rating was received on February 11, 1994. As such, the rating period on appeal is from February 11, 1993. 38 C.F.R. § 3.400(o)(2) (2012). II. Analysis The appellant contends that he is entitled to a rating in excess of 20 percent for chondromalacia of the left patella. For the reasons that follow, the Board finds that a higher rating is not warranted. Private medical records, VA treatment records and VA examination reports during the period on appeal indicate the appellant consistently report left knee pain. A February 1994 private treatment record from S.B., M.D., reflects that on examination, the appellant's left knee had a good range of motion. Dr. S.B. did not hear any crepitus or ballottement and there was "pretty much no pain to palpation." A July 1994 follow-up records reflects that the appellant had old trauma to the left knee with some ballottement appreciated. An April 1994 private treatment record reflects that the appellant reported having constant pain in his left knee with any type of significant activity. He said it gave away. On examination, the appellant had no effusion in his left knee. There was no medial or lateral laxity. He had a negative Lachman, negative anterior drawer, and negative pivot shift tests. His X-rays were negative. The assessment was subjective complaints of left knee pain. The appellant was afforded a VA examination in October 1994. The appellant described pain in the left knee and occasional swelling. X-rays of the knees from July 1992 were noted to be normal. On examination, the left knee revealed no evidence of any swelling or deformity. No instability was noted. There was slight tenderness noted on either side of the patella. Full range of flexion of 140 degrees and extension of 0 degrees was elicited in the left knee joint, but there was slight crepitus associated with movements. Gait was noted to be normal. Deep knee bends could not be performed normally in the left knee. No evidence of any cysts was noted in the posterior aspect of the knee. In a September 1995 statement, the appellant stated that his knee condition caused him a lot of pain. He stated that he wore a knee brace but was unable to use it continuously due to pain. A July 1997 VA ambulatory care nursing progress note reflects that the appellant complained of left knee pain and lots of swelling. He wore a knee brace. Another July 1997 VA treatment record reflects that the appellant reported having left knee pain. He stated that he was unable to work because of knee pain. He wore a brace. On examination, there was mild effusion. An X-ray showed mild degenerative joint disease. The assessment was chronic ACL tear with degenerative joint disease of the knee. In a July 1997 statement, the appellant reported that he could not hold a job because of his illnesses. In an October 1997 statement, the appellant reported that he was unable to gain or maintain gainful employment because his service-connected knee condition caused him constant pain and he could not stand or put weight on it for any length of time. The appellant was afforded another VA examination in July 1998. The report reflects that the appellant was admitted to the VA hospital in January 1995 because of a problem with his left knee. He was found to have effusion of the left knee and lateral instability of the left knee. He was diagnosed as having anterior cruciate ligament deficiency in the left knee. A brace and exercise were prescribed. The appellant reported that he had been using a cane and a brace. He had daily pain in the left knee. The left knee popped and swelled daily. The appellant reported that it gave way at times and it locked up at times. The appellant could walk one block. There was discomfort going up and down steps. On examination, the appellant's left knee did not reveal any edema. There was no deformity or significant tenderness. There was moderate lateral instability on both the right and left and the anterior/posterior stability. The left knee could be hyperextended to 3 degrees and flexed to 133 degrees. The appellant complained of some discomfort in flexion of the knee. He walked with a limp favoring the left lower extremity and used a cane and a brace. An X-ray of the left knee was reported as normal, however, the MRI of the left knee revealed a Grade III tear of the posterior horn of the medial meniscus. There was notching of the patella cartilage (chondromalacia), and a thinned out but intact anterior cruciate ligament. The diagnoses were internal derangement of the left knee with MRI evidence of Grade III tear of the posterior horn of the medial meniscus and thinned out, but intact anterior cruciate ligament, and chondromalacia of the left knee. The VA examiner opined that the functional loss due to pain in the left knee was significant. There was no muscle atrophy and no skin changes noted at the time of the above. An April 1999 VA Vocational Evaluation report indicates that the appellant's employability was impaired by the physical limitations caused by his service-connected left knee condition, and by his non-service-connected back condition and right leg/knee conditions. The report noted that after reviewing the appellant's employment history and his education and training, it was determined that the appellant had not been able to overcome this impairment by education or employment experience. The appellant's limitations were primarily found to be caused by his nonservice-connected conditions, although his service-connected left knee did materially contribute to his overall impairment to employability. A March 2001 private treatment record reflects that the appellant had bilateral knee pain. He reported that his knees would give out on him and sometimes they would pop. He did not describe any true locking. On examination, knee range of motion was from zero to 135 degrees. There were negative Lachman and Drawer tests. The knee was stable to varus and valgus stress. There was a negative patellofemoral compression test and no effusion. He was tender over the lateral joint line. X-rays of the knees were unremarkable. The assessment was bilateral knee pain. An April 2001 MRI report reflects that the left knee had mild to moderate osteoarthritic changes vs. old, traumatic arthritic changes of the left knee with thinning and irregularities of the articular cartilages and thinning of the menisci. There was small joint effusion and granulation tissues at the level of the anterior cruciate ligament compatible with an old partial tear of this ligament. There was a normal posterior cruciate ligament. There were normal medial collateral and lateral collateral ligaments. There was a small popliteal or Baker's cyst. A May 2001 private treatment record reflects that the appellant had degenerative joint disease and probably a torn cartilage. On examination ,the appellant did have some crepitation in both knees, maybe a little worse on the right. There was no edema. A May 2002 private treatment record reflects that the appellant complained of knee pain. On examination, his knee had no effusion, swelling or crepitus. The assessment was bilateral knee osteoarthritis. A March 2004 private treatment record reflects that the appellant complained of pain in the knees. On examination he had crepitation of both knees. The assessment was degenerative arthritis. In a June 2004 VA opinion, the VA clinician stated that there were no signs of recurrent subluxation or lateral instability. A December 2004 private initial consultation report reflects that the appellant's gait was antalgic. He could heel and toe walk without difficulty. Valgus deformities in both knees were noted. A March 2005 private treatment record reflects that the appellant had pain in both knees, especially the left. There was crepitation on flexion and extension. A July 2005 private treatment record indicates that the appellant had pain in his knees on flexion, extension, or stressing and no edema. An August 2005 private treatment record indicates that the appellant had a little swelling of the left knee, more so than the right, where he had osteoarthritis and degenerative joint disease. A February 2006 private treatment record reflects that the appellant reported having knee pain. On examination, he had crepitation of both knees. The assessment was degenerative arthritis. The appellant was afforded a VA examination in March 2006. The appellant complained of pain, weakness, stiffness, instability or giving way, locking and fatigability. The appellant took Zostrix, Clinoril, and Tylenol for pain. The appellant reported that there were no flare-ups in that the condition was constant. He ambulated with a brace and cane. There were no episodes of dislocation or recurrent subluxation. The appellant was unemployed and stated that he had difficulty with activities that prolonged walking or standing. He stated that he had difficulty climbing up and down stairs. He stated that he could only ambulate about 20 feet without stopping. Therefore, the condition interfered with his activities of daily living. The appellant reported that he could only drive an hour before having to stop to rest his knee. On examination, he did not have pain on motion throughout the range of motion process. There was no additional limitation following repetitive use throughout the range of motion process. The appellant reported instability of the knee and stated that he had fallen while taking a bath. The left knee was mildly unstable with a negative McMurray's sign. Lachman's test was negative. There was no evidence of painful motion throughout the range of motion process or evidence of fatigue, weakness, lack of endurance or incoordination involving the left knee. Although the gait was steady, there was abnormal weight-bearing involving the left knee when ambulating. There was no edema, redness, ankylosis, heat, guarding of movement or abnormal movement involving the left knee. There was a history of falls. The goniometer measurement revealed flexion of 0 to 120 degrees bilaterally limited by pain and stiffness. There was full extension. An X-ray report showed a diagnosis of degenerative osteoarthritis of the left knee with moderate functional limitation related to pain. An April 2006 private treatment record indicates that the appellant had swelling of both knees, with crepitation on flexion and extension. He had pain on stressing and no edema. The appellant had diagnoses of degenerative joint disease and osteoarthritis of the knees. In a November 2007 private treatment record, Dr. F.W. stated that the appellant had difficulty with his left knee. He did well at times. He stated that the appellant certainly complained of it each time he saw him. In a March 2009 private treatment record, DR. F.W. stated that the appellant had fallen out of the bathtub and injured his knees, especially the left knee. He had seen a physician who wanted to do orthoscopic surgery on him. The assessment was acute injury, possible torn cartilage, of the left knee due to fall. An April 2009 private treatment record reflects that the appellant had a torn cartilage in his left knee due to a fall. The physician noted that they recommended that he have surgery, but the appellant said he did not want to have it. At the March 2009 Board hearing, the appellant testified that he wore a knee brace ever day. (Board Hearing Transcript (Tr.) at p. 2) He reported that his knee gives way a lot, including a few minutes prior to the hearing. (Tr. at p. 3) The appellant was afforded a VA examination in August 2009. The appellant reported experiencing constant, sharp, burning, aching, throbbing pain of his left knee with flare-ups whenever it rains. He stated that flare-ups lasted two to three days. Pain was increased with standing and walking. He took extra strength Tylenol and muscle relaxants for pain. He was able to walk one block. The appellant used a knee brace and cane. On examination, he walked with a mild limp. His left knee had flexion of 130 degrees and extension of 0 degrees. There was no loss of joint function with use due to pain fatigue, weakness, lack of endurance or incoordination. There was no anterior, posterior, or mediolateral instability. The appellant complained of tenderness both medially and laterally at the joint line. There was no joint swelling, heat or redness noted. McMurray sign was negative. There was no scarring crepitus. There was slight patellofemoral pain elicited. The diagnosis was degenerative joint disease of the left knee. The VA examiner opined that the appellant was experiencing mild to moderate disability from his left knee condition at that time. An August 2009 X-ray report reflects that there was severe osteopenia of both knees. There was no suprapatellar effusion on either side. A January 2010 private treatment record reflects that the appellant complained of bilateral knee pain. On examination, he was grossly and neurovascularly intact in both lower extremities. He had symmetric deep tendon reflexes. He had pain primarily along the medial joint lines bilaterally, the left greater than the right. He had good range of motion. The knees were stable. The impression was early arthritic bilateral knee pain. In a March 2010 statement, D.C. stated that she had been with the appellant on constant medical appointments because of pain with his knees. She stated that she took him to the emergency room because his left knee had locked and they could not get him out of pain. She stated that the appellant was not lying when he said he was in constant pain. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a lay person, D.C. may report symptoms capable of lay observation, such as the appellant telling her he has symptoms of pain. As the appellant has consistently reported left knee pain, the Board finds D.C.'s statements to be credible. As the statement is competent and credible it is probative. A June 2010 VA examination report reflects that the appellant reported that he was unable to stand for more than few minutes or walk more than a few yards. On examination, the appellant had left knee flexion of 0 to 80 degrees and normal left knee extension. There was objective evidenced of pain following repetitive motion. The VA examiner stated that he was unable to test whether there were additional limitations after three repetitions of range of motion because of severe pain. There was no joint ankylosis. X-ray results indicated diffuse osteopenia bilaterally. There was no evidence of fracture or joint effusion. The patellofemoral articulations appeared unremarkable. There was bilateral degenerative joint disease of the femorotibial joint. The appellant reported that he had been unemployed for the past 10 to 20 years due to knee and other health issues. In a December 2010 statement, Dr. F.M.W. stated that the appellant had degenerative joint disease of the knees with the left being worse. He stated that the appellant was totally disabled to carry out any gainful employment and had been for many years. The appellant was afforded a VA examination in February 2012. The VA examiner found the appellant had bilateral degenerative joint disease and osteopenia of both knees and chondromalacia of the left knee. The appellant did not report that flare-ups impacting the function of the knee or lower leg. On range of motion testing, the left knee had flexion of 105 degrees with objective evidence of painful motion beginning at 100. The left knee had extension of 0 with objective evidence of painful motion. The appellant was able to perform repetitive-use testing with 3 repetitions. Post-test flexion ended at 100 degrees. The appellant had functional loss contributed to by less movement than normal, weakened movement, excess fatigability, pain on movement and swelling in the left knee. The appellant also had a large bony prominence and crepitation on flexion. The appellant had tenderness or pain to palpation for joint line or soft tissues of the knees. Muscle strength testing on left knee flexion and extension was 5/5. An anterior instability test (Lachman test) was normal in the left knee. A posterior instability test (posterior drawer test) was normal in the left knee. A medial-lateral instability test was also normal in the left knee. There was no evidence or history of recurrent patellar subluxation/dislocation. The appellant did not have "shin splints," meniscal conditions, a meniscectomy, or a total knee joint replacement. The report reflects that the appellant used a cane constantly. Previous imaging studies of the knee documented degenerative arthritis of the knee. The appellant did not have X-ray evidence of patellar subluxation. The VA examiner cited a May 2010 X-ray report indicating the appellant had bilateral degenerative joint disease and osteopenia. There was diffuse osteopenia bilaterally. There was no evidence of fracture or joint effusion. The patellofemoral articulations appeared unremarkable. The VA examiner found that the knee condition did not impact his ability to work. The VA examiner found that the appellant's left knee was negative for ankylosis. The appellant had limitation in flexion, but extension of 0 degrees. Based on the above evidence, the Board finds that a rating in excess of 20 percent for chondromalacia of the left patella is not warranted. The appellant's left patella chondromalacia is evaluated under Diagnostic Codes 5299-5257 and rated by analogy to DC 5257. As noted above, under Diagnostic Code 5257, moderate recurrent subluxation or lateral instability warrants a 20 percent evaluation and severe recurrent subluxation or lateral instability warrants a 30 percent evaluation. The words "moderate" and "severe" are not defined by the VA Schedule for Rating Disabilities. The Board finds that the overall evidence of record supports a finding that the appellant has no more than moderate recurrent subluxation or lateral instability. The appellant reported that his knee gave way throughout the period on appeal. See e.g. April 1994 private treatment record, March 2009 Hearing testimony. However, the evidence does not reflect that he had severe subluxation or lateral instability. Several private treatment records and VA examination reports reflect that the appellant had no instability of the left knee. The April 1994 private treatment record indicated the appellant's left knee had no medial or lateral laxity. At the October 2009 VA examination, no instability noted. The March 2001 private treatment record noted that the appellant had negative Lachman and Drawer tests and the knee was stable to varus and valgus stress. The June 2004 VA opinion noted that there were no signs of recurrent subluxation or lateral instability. The August 2009 VA examination report reflects that on examination, there was no anterior, posterior, or mediolateral instability. The January 2010 private treatment record indicated the appellant's knees were stable. At the February 2012 VA examination, the anterior instability test, posterior instability test and media-lateral instability test were normal in the left knee. There was no evidence of recurrent patellar subluxation/dislocation. The only medical evidence of instability in the left knee was the July 1998 VA examination, which found that the appellant had "moderate lateral instability" on both the right and left knees and anterior/posterior stability, and the March 2006 VA examination. At the March 2006 VA examination, the appellant complained of instability, giving way and locking. He reported that he had instability in his knee and he had fallen while taking a bath. On examination, the left knee was mildly unstable with negative a McMurray's sign and Lachman's test. The appellant is competent to report symptoms capable of lay observation, such as instability in his left knee. See Jandreau, 492 F.3d at 1377. The Board finds the appellant's statements to be generally credible, as there is medical evidence of some instability in the left knee. The Board also finds the appellant's statements regarding pain in his left knee to be credible, as they are consistent throughout the period on appeal. However, the Board finds that the appellant's reports of occasional giving way and instability of the knee are consistent with his current evaluation of 20 percent for moderate recurrent subluxation or lateral instability. The evidence of record does not support a finding that the left knee had severe lateral instability. The two reports finding that the appellant had instability in the left knee indicated the appellant had moderate and mild instability. The appellant's numerous private treatment records reflect that the appellant consistently reported having pain in his left knee, but not that he consistently reported severe instability of the left knee. The appellant reported that he wore a knee brace, which is also consistent with moderate instability. Accordingly, the Board finds that the overall evidence of record supports a finding that the appellant had no more than moderate recurrent subluxation or lateral instability of the left knee and thus a rating in excess of 20 percent is not warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 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. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As the appellant's left patella chondromalacia is rated under Diagnostic Code 5299-5257, the rating is not predicated on limitation of motion, but rather instability. Thus, DeLuca is not applicable. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). Moreover, as discussed above, the Board finds that the appellant's symptoms, including the appellant's complaints of pain, are consistent with mild to moderate subluxation or lateral instability. The August 2009 VA examiner opined that the appellant was experiencing mild to moderate disability from his left knee condition at that time. The Board has also considered whether any other Diagnostic Codes are applicable. The appellant has complained of pain on motion and there is evidence of limitation of motion of the left knee. The knee may be separately rated for instability and limitation of motion without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. However, appellant has a separate rating for osteoarthritis of the left knee, rated as 10 percent disabling under Diagnostic Code 5010 throughout the period on appeal. Diagnostic Code 5010 provides that traumatic arthritis, due to trauma and substantiated by x-ray findings, is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings is 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 the limitation of motion, to be combined, not added under Diagnostic Code 5003. Under diagnostic code 5260, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, to 10 degrees warrants a 10 percent rating, to 15 degrees warrants a 20 percent rating, to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating, and to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The issue of entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee is not before the Board. Moreover, the evidence does not reflect that the appellant had impairment of flexion or extension to a compensable degree. The range of motion tests during the period on appeal indicated the appellant had at worst flexion of 80 degrees. See June 2010 VA examination. Flexion limited to 80 degrees is not compensable under Diagnostic Code 5260 for limitation of flexion of the leg. The appellant had normal extension throughout the period on appeal other than the July 1998 VA examination where he had hyperextension of 3 degrees. As the appellant did not have extension limited to 10 degrees, he would not be entitled to a higher rating under Diagnostic Code 5261. The Board notes that even with consideration of DeLuca, the appellant did not have motion limited to a compensable degree during the period on appeal due to painful motion, weakened movement, or excess fatigability. The appellant's separate 10 percent evaluation under Diagnostic Code 5010 already contemplates pain on motion. Thus, as the appellant is separately rated for limitation of motion of the left knee, and regardless did not have limitation of motion to a compensable degree during the period on appeal, a higher rating is not warranted under Diagnostic Codes 5010, 5260, and 5261. The appellant has a range of motion and no clinical evidence of atrophy, thus a rating under DC 5256 for ankylosis is not warranted. Diagnostic Codes 5258, 5259, 5262 and 5263 would not provide the appellant with a higher rating. The maximum ratings under those Diagnostic Codes are 10 to 20 percent, and the appellant is already receiving a 20 percent rating under Diagnostic Code 5299-5257 and a 10 percent rating under Diagnostic Code 5010. There is no evidence the appellant has a scar related to his service-connected chondromalacia of the left patella. Thus, a separate rating is not warranted for a scar. In deciding the appellant's increased rating claim, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the appellant is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the appellant is not entitled to additional increased compensation at any time within the appeal period. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the left knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the Veteran's left knee disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the left knee disability is primarily manifested by mild to moderate instability and pain. The appellant is already separately rated for osteoarthritis of the left knee associated with chondromalacia of the left patella for pain on motion. The applicable diagnostic codes used to rate the Veteran's disability provide for ratings based instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In conclusion, the Board finds that the evidence is against a finding that the appellant is entitled to a rating greater than 20 percent for service-connected chondromalacia of the left patella during the period on appeal. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a rating in excess of 20 percent for chondromalacia of the left patella is denied. REMAND Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Board finds that the issue of entitlement to a TDIU has been raised by the record. The July 1997 VA treatment record noted that the appellant stated that he was unable to work because of knee pain. In the October 1997 statement, the appellant reported that he was unable to gain or maintain gainful employment because his service-connected knee condition caused him constant pain and he could not stand or put weight on it for any length of time. The April 1999 VA Vocational Evaluation report indicates that the appellant's employability was impaired by the physical limitations caused by his service-connected left knee condition, and by his non-service-connected back condition and right leg/knee conditions. The June 2004 VA opinion indicated that the left knee disability would significantly affect the patient's performing in any gainful employment, demanding prolonged standing, walking or climbing, kneeling or squatting. At the June 2010 VA examination, the appellant reported that he had been unemployed for the past 10 to 20 years due to knee and other health issues. The Board finds that the evidence reflects that during the period on appeal, the appellant asserted that he was unemployed due to his left knee disability. Thus, the Board finds that the appellant raised the issue of entitlement to a TDIU during the period on appeal. The claim must be adjudicated by the AOJ prior to Board adjudication. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in connection with his inferred claim for TDIU. 2. Thereafter, schedule the Veteran for an appropriate VA medical examination to determine whether the Veteran's service-connected disabilities render him unemployable. The examiner is requested to furnish an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities (chondromalacia of the left patella, evaluated as 20 percent disabling; and arthritis, left knee, 10 percent) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Detailed rationale is requested for the opinion provided. 3. Upon completion of the foregoing, adjudicate the issue of entitlement to a TDIU, based on all of the evidence of record. If the benefit sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order The appellant 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). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs