Citation Nr: 1320456 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-03 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for post surgery residuals, left knee arthritis, prior to March 23, 2011. 2. Entitlement to an evaluation in excess of 40 percent for limitation of use, left knee, since March 23, 2011. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection at a 10 percent initial evaluation for arthritis, left knee, effective February 22, 2005. In September 2012, the RO issued a rating decision granting an increased evaluation of 20 percent, effective July 24, 2012, for the Veteran's left knee disability. In December 2012, the RO issued a rating decision granting an increased evaluation of 20 percent, effective from February 22, 2005, the date of the Veteran's original claim, through March 22, 2011, for post surgery residuals, left knee arthritis; followed by an increased evaluation of 40 percent, effective March 23, 2011, for limitation of use, left knee. Accordingly, the Board has recharacterized the issue on appeal to reflect the staged disability evaluations assigned to the Veteran's left knee disability. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (separate ratings may be assigned for separate periods of time based on the facts found). FINDINGS OF FACT 1. Prior to March 23, 2011, the Veteran's post surgery residuals, left knee arthritis, were manifested by flexion ranging from 95 to 100 degrees, extension ranging from 5 to 10 degrees, pain on motion, creptius, positive patella grind, 4-5/5 muscle strength; x-ray evidence of degenerative or traumatic arthritis, and complaints of joint pain, swelling, reduced range of motion and weakness. 2. Since March 23, 2011, the Veteran's limitation of use, left knee, has been manifested by flexion to 85 degrees, extension ranging from 5 to 15 degrees, pain on motion, crepitus, 4/5 strength; x-ray evidence of degenerative or traumatic arthritis, and complaints of joint pain, swelling, reduced range of motion and weakness. 3. Throughout the course of this appeal, the Veteran's left knee disability has been manifested by no more than mild instability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for post surgery residuals, left knee arthritis, prior to March 23, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012) 2. The criteria for an evaluation in excess of 40 percent for limitation of use of left knee, since March 23, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012). 3. The criteria for a separate evaluation of 10 percent for instability of the left knee, associated with service-connected left knee disability, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim for an increased evaluation for his left knee disability arises from his disagreement with the initial evaluation assigned to this condition following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claim, including VA treatment records, private treatment records; and by providing the Veteran with the appropriate medical examinations to determine the severity of his left knee disability. Recently, the RO provided the Veteran with a VA examination of the knee in July 2012, which was later supplemented by a September 2012 addendum. The examination was performed by a VA physician who had reviewed the Veteran's claims file, reviewed with the Veteran his history of the left knee disability, examined the Veteran, and included rationales for the conclusions reached therein. Following the examination, an independent medical opinion pertaining to the degree of functional loss exhibited in the Veteran's left knee was obtained in December 2012. The independent examiner reviewed the Veteran's claims file, and answered the requested medical opinion, while providing supporting rationale citing to both factual findings within the Veteran's treatment records and pertinent medical literature. The Board finds that the July 2012 examination and December 2012 independent medical opinion are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that the July 2012 VA examination or the December 2012 independent medical opinion were inadequate. Id. Earlier examinations of the knee were also conducted in April 2011, February 2008, and August 2005. In March 2011, and again in April 2012, the Board remanded this matter to the RO directing that updated treatment records be requested; and that an updated examination of the knee be conducted. The RO subsequently sent March 2011 and April 2012 letters to the Veteran requesting that he submit or identify any additional evidence, including medical treatment records, in support of his appeal. The RO also obtained the Veteran's updated VA treatment records, dated through July 2012; and scheduled the Veteran for April 2011 and July 2012 medical examinations of the left knee. Accordingly, the directives of the Board's March 2011 and April 2012 remands have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran served on active duty in the Army from May 1966 to May 1968. His service treatment records revealed ongoing episodes of locking in the left knee after having been thrown in the air five to ten feet high in November 1967. A March 1968 x-ray examination of the left knee revealed osteochondritis dissecans, with loose body. In March 1968, he underwent a medial arthrotomy excision of a loose body, left knee. On February 22, 2005, the Veteran filed his original claim seeking service connection for a left knee disability. In August 2005, a VA examination for joints was conducted. The examination report noted the Veteran's complaints of constant left knee pain, which he rated as an 8 out of 10 in severity. He indicated that the pain is exacerbated by excessive ambulation, prolonged standing, and the weather. The Veteran also reported that his left knee gave way on a daily basis due to quadriceps instability. The examination report noted that he did not use any devices to help him ambulate. Physical examination of the left knee revealed medial and lateral joint line tenderness, with no effusion, warmth or erythemia. Range of motion testing of the left knee revealed extension to 10 degrees and flexion to 100 degrees, with moderate crepitation. Motor strength testing revealed 4-5/5 strength. Lachman's and anterior drawer sign testing were negative, patellar grind testing was positive, and there was moderate valgus and valrus stress pain. The examiner noted that the Veteran walked with a significant antalgic gait favoring the left knee. X-ray examination of the left knee revealed an impression of degenerative changes of the left knee with narrowing in the medial compartment. The examination report concluded with diagnoses of status post left medial menisectomy, secondary to internal derangement from blast injury; post traumatic degenerative joint disease of the left knee with severe medial compartment narrowing; and chronic left knee arthralgia. A July 2006 VA treatment report noted the Veteran's complaints of increasing pain in the left knee. Physical examination of the left knee revealed a well healed scar approximately 10 centimeters in length. Range of motion testing of the left knee revealed extension to 5 degrees and flexion to 95 degrees. The left knee also exhibited medial pseudolaxity and was stable to anterior-posterior stress. X-ray examination of the left knee revealed severe degenerative joint disease, with the medial compartment most affected. The treatment report indicated that the Veteran received an injection as treatment for the left knee at that time. The report concluded with an assessment of severe degenerative joint disease of the left knee. A September 2006 statement from the Veteran indicated that he had started to use a walker to ambulate. An April 2007 VA treatment report noted that the Veteran had received a corticosteroid injection in December 2007, which had helped relieve his left knee pain for about three weeks. The report noted that he was now seeking a new injection. In February 2008, a VA examination for joints was conducted. The examination report noted the Veteran's complaints of swelling and constant left knee pain, which he rated as a 9 out of 10 in severity. The Veteran indicated that these symptoms are aggravated by walking, going down stairs, and getting out of a car. The Veteran denied having any symptoms of instability, heat, or redness. Physical examination revealed that the Veteran had an antalgic gait, with no unusual shoe wear pattern. Range of motion testing of the left knee revealed extension ranging from 5 to 10 degrees and flexion ranging from 100 to 114 degrees, with pain during the last 5 degrees of motion. The report noted findings of crepitus, moderate increased pain with valgus and valrus stress, negative Lachman's and McMurray testing, no effusion, and motor strength of 4/5 in the quadriceps and hamstrings. The report noted that the patella was stable, tracked slightly, laterally, with clicking sound, and was tender to palpation and compression. It also noted that the Veteran exhibited mild guarding, without apprehension during the examination. An elliptical surgical scar was noted to be well healed. The examination report concluded with a diagnosis of advanced degenerative joint disease of the left knee. It also noted that left knee surgery was needed in this case, but not was possible due to the Veteran's chronic obstructive lung disorder (COPD). A March 2008 VA treatment report noted the Veteran's complaints of increasing left knee pain. Physical examination of the left knee revealed crepitus and flexion limited by 10 degrees. Neurological examination revealed 5/5 muscle strength in the lower extremities, bilaterally, with grossly intact sensory examination. The treatment report noted that the Veteran received an injection into his left knee, and concluded with an assessment of significant left knee osteoarthritis. A November 2008 statement from the Veteran's son noted that the Veteran had difficulty getting around, that he was using a walker, and was unable to do any odd jobs on the outside of his house. A November 2008 VA treatment report noted that the Veteran's left knee was being treated with steroid injections every six weeks because he was not a surgical candidate due to his severe COPD. Physical examination of the left knee revealed crepitus on active and passive range of motion testing, with flexion to 90 degrees, no erythema, warmth or effusion. The report concluded with an assessment of left knee osteoarthritis. In April 2011, the Veteran underwent a VA examination for joints. The VA examiner noted that the Veteran's claims file had been reviewed. The examination report noted the Veteran's complaints of fairly constant left knee pain, which he rated as an 8 out of 10 in severity. The Veteran reported that his pain was increased when negotiating stairs and walking, and that he is unable to kneel or squat. He also reported intermittent swelling, intermittent mechanical symptoms, and that his left knee buckles approximately three times per week, secondary to pain. The examination report noted that the Veteran used a wheel chair to ambulate around the house and a motorized scooter when he goes out into the community. Physical examination revealed that the Veteran's gait to be decreased in stride length and velocity. Physical examination of the left knee revealed a well healed scar from a medial patellar incision. Patellar compression and patellar inhibition testing were both positive, lateral patellar retinaculum was tight, and there was mild effusion. Range of motion testing of the left knee revealed extension to 5 degrees and flexion to 85 degrees, with pain throughout the flexion arc. The report noted tenderness to the medial joint line, no lateral joint line tenderness, and negative McMurray, Lachman's and anterior drawer testing. The report noted mild attenuation of medial joint structures, but no true instability to varus or valgus stress in extension or 30 degrees of flexion. Motor strength testing revealed 4/5 strength in the quadriceps, and the report noted that this weakness was in part due to generalized deconditioning and in part due to disuse caused by chronic knee pain. No thigh atrophy was indicated. Upon repetitive range of motion testing, the Veteran indicated that the pain did not intensify, and range of motion was unchanged. The VA examiner further indicated that under further repetitive testing it would be reasonable that there would be an extension loss of greater than 10 degrees. The report concluded with a diagnosis of degenerative arthritis, left knee. In July 2012, a VA examination of the knee was conducted. The examination report noted the Veteran's complaints of stiffness, intermittent swelling, and global left knee pain, ranging from 8 to 10 out of 10 in severity. He reported that his left knee gives out several times per week, occasionally causing him to fall. The VA examiner noted that the instability was likely pain related and did not represent true instability. Range of motion testing of the left knee reveal flexion to 85 degrees, with pain beginning at 15 degrees; and extension to 15 degrees, with pain at that point. Repetitive range of motion testing in the left knee revealed no additional loss in range of motion. The report noted that there was functional loss and impairment in the left knee resulting in less movement than normal and weakened movement. The report also noted symptoms of swelling, instability of station, and disturbance of locomotion. Physical examination revealed tenderness or pain to palpation of the joint line or soft tissue of the left knee. Muscle strength testing revealed 4/5 strength on left knee flexion and extension. Findings on anterior instability (Lachman's test), posterior instability (Posterior drawer test), and medial-lateral instability (valgus/valrus pressure to the knee in extension and 30 degrees of flexion) testing were all listed as normal. The report noted that there was no evidence or history of recurrent patellar subluxation or dislocation. The report noted that the Veteran had undergone a surgical procedure for meniscal condition, and that this resulted in a meniscus cartilage condition, manifested by meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion. It noted that the Veteran used a wheelchair or walker constantly, and that he used a motorized scooter when out in the community. The report concluded with a diagnosis of degenerative arthritis, left knee. The examiner further noted that the Veteran was significantly disabled by his arthritic left knee, and that this would normally be treated by a total knee arthroplasty, which was not possible in the Veteran's case. In a September 2012 addendum, the examiner noted that the evidence of record had been reviewed, and that no changes were needed to the examination report. In December 2012, an independent medical opinion was obtained. The medical examiner noted the Veteran's inservice history of arthroscopic left knee surgery, to include a partial medial meniscectomy. Following a review of the evidence of record, including a review of his post service treatment records, the examiner opined that it was "at least as likely as not" that the Veteran's left knee disability is functionally limited to 15 degrees and less of extension, and moderate loss of flexion due to pain caused by a loss of joint space and probable bone to bone abutment (degenerative joint disease). The examiner further noted that medical literature indicates that tears of the posterior horn attachment of the medial meniscus to the tibial spine produces radial extrusion of the meniscus and medial joint space narrowing, with loss of articular cartilage. The examiner noted that the loss of medial meniscal tissue resulted in an increase of cartilage wear and tear producing chronic joint effusion (swelling), limitation of motion in flexion and extension, and bone to bone abutment. This would normal require a total knee joint replacement, but the Veteran was medically unfit for surgery due to his severe cardiac conditions. The examiner noted that the Veteran's loss of joint space and soft tissues causes a mechanical failure warranting a subjective description of medically and effectively ankylosed for functional purposes. A. Prior to March 23, 2011 From February 22, 2005 (the date of the Veteran's claim) through March 22, 2011, the RO assigned the Veteran's post surgery residuals, left knee arthritis, a 20 percent disability evaluation pursuant to Diagnostic Codes 5003 and 5258. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5258. Pursuant to Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. Diagnostic Code 5258, used in rating impairment of the semilunar cartilage, provides a 20 percent evaluation for a damaged meniscus with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A higher rating is not warranted under Diagnostic Code 5258. Diagnostic Code 5261 pertains to limitation of extension of the knee. This code provides that extension limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a , Diagnostic Code 5261. Diagnostic Code 5260, on the other hand, considers knee motion in the opposite direction and provides that flexion limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. 38 C.F.R. § 4.71a , Diagnostic Code 5260. A separate rating for limitation of extension and for limitation of flexion may be assigned. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004); see also VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). As noted above, there is diagnostic evidence of postoperative derangement in the left knee. The Veteran's service treatment records document his inservice injury and subsequent surgery, and the August 2005 VA examination for joints concluded with a diagnosis of status post left medial menisectomy, secondary to internal derangement from blast injury. The evidence of record, prior to March 23, 2011, includes consistent objective findings of painful motion of the left knee joint. Moreover, the Veteran has provided testimony and written complaints concerning the pain, swelling, reduced motion, and instability in his left knee, which the Board finds to be both competent and credible. The August 2005 VA examination for joints noted findings of positive patellar grind testing, as well as medial and lateral joint line tenderness. The February 2008 VA examination revealed findings of diffuse tenderness to palpation and upon compression of patella. It also noted a clicking sound in the patella, which tracked slightly, laterally. Thus, the Board finds it reasonable to conclude that the 20 percent evaluation for the left knee disability, prior to March 22, 2011, pursuant to Diagnostic Code 5258, is best applicable here. 38 C.F.R. §§ 4.7, 4.20, 4.21, 4.27 (2012); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (Board's selection of a diagnostic code may not be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," if relevant data is examined and a reasonable basis exits for its selection). However, the 20 percent evaluation is the maximum rating available under Diagnostic Code 5258. 38 C.F.R. § 4.71a. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the Veteran, to determine if an evaluation in excess of 20 percent is warranted at any time prior to March 23, 2011. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As for the limited motion exhibited by his left knee disability prior to March 23, 2011, the Veteran cannot receive ratings under both Diagnostic Code 5258 and Diagnostic Codes 5260 and/or 5261 without violating the rule against pyramiding. A precedential opinion of VA Office of General Counsel, which is binding on the Board, has determined that limitation of motion is a relevant consideration under Diagnostic Code 5259, which also addresses disability of semilunar cartilage. See VAOPGCPREC 9-98; 63 Fed Reg. 56704 (1998). By analogy, limitation of motion is also a consideration under Diagnostic Code 5258. Separate ratings under Diagnostic Code 5258 and Diagnostic Codes 5260 and/or 5261 (the diagnostic codes which address limitation of flexion and extension of the leg) are therefore precluded due to the prohibition against pyramiding. 38 C.F.R. § 4.14. Moreover, the range of motion exhibited by the Veteran's left knee prior to March 23, 2011, with full consideration of pain and functional loss, would not warrant a higher evaluation, even if evaluations were assigned for both loss of flexion and extension, rather than utilizing Diagnostic Code 5258. Specifically, prior to March 23, 2011, the limitation of extension exhibited by the Veteran's left knee (10 degrees) would warrant no more than a 20 percent separate rating; and the limitation of flexion (no less than 95 degrees) would be evaluated as noncompensable. Therefore, the application of ratings under Diagnostic Code 5260 and/or Diagnostic Code 5261 would not result in a disability evaluation in excess of 20 percent. The Board has considered whether the Veteran is entitled, prior to March 23, 2011, to a separate rating under any other potentially applicable diagnostic codes, including 5256 (for rating ankylosis), 5262 (for rating impairment of the tibia or fibula), or 5263 (for rating genu recurvatum). There are no findings of ankylosis, instability, impairment of the tibia or fibula, genu recurvatum, or malunion or nonunion of the tibia at any point during the period under appeal. As noted below, the Board is granting the Veteran a separate disability rating based upon instability in the left knee. The Board has also considered whether the surgical scar on the Veteran's left knee may provide the basis for a higher rating; however, as there have been no findings that the scar causes any limited motion, is unstable or painful on examination, or covers an area greater than 12 square inches, Diagnostic Codes 7800-7805 are not applicable in this case. Effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Rating Schedule that addresses the skin. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805; however, these amendments apply to applications for benefits received by VA on or after October 23, 2008. As the Veteran's claim was already pending as of that date, these new regulations do not apply. While these regulations appear to provide for consideration of the new regulations upon request by the Veteran, no such request has been made. In sum, the Board finds that the preponderance of the medical evidence is against a finding in favor of an evaluation in excess of 20 percent for the Veteran's post surgery residuals, left knee arthritis, at any time from February 22, 2005 through March 22, 2011. See 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5258 (2012). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an initial evaluation in excess of 20 percent, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Since March 23, 2011 Since March 23, 2011, the RO evaluated the Veteran's limitation of use of the left knee as 40 percent disabling pursuant to Diagnostic Code 5256. Diagnostic Code 5256 pertains to ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Pursuant to Diagnostic Code 5256, a 40 percent rating is assigned if the knee is ankylosed in flexion between 10 and 20 degrees; a 50 percent rating is assigned if the knee is ankylosed between 20 and 45 degrees; and a 60 percent rating is assigned for extremely unfavorable ankylosis of the knee at an angle of 45 degrees or more. Id. Range of motion testing of the left knee, conducted in April 2011 and July 2012, revealed flexion to no less than 85 degrees and extension to no less than 15 degrees. In December 2012, the independent medical examiner opined that the level of pain and functional loss exhibited by the Veteran's left knee rendered it effectively ankylosed for functional purposes. Based upon this opinion, and the remaining evidence of record, the Board finds the analogy to ankylosis of the left knee between 10 and 20 degrees to be appropriate. However, no basis for a higher evaluation is shown. The evidence does not demonstrate that the left knee painful motion limits the function of his left knee to a degree in excess of that contemplated for the currently assigned 40 percent rating. The evidence demonstrates no additional functional impairment in terms of lost range of motion that would warrant a higher rating than currently assigned. Moreover, as noted below, the Board has awarded a separate rating based upon the instability of the left knee during this period of time. For these reasons, the Board finds that the weight of the evidence is against a finding of a rating in excess of 40 percent for a left knee disability since March 23, 2011. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). C. Instability of the Left Knee Diagnostic Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Slight impairment merits a 10 percent evaluation. Moderate impairment warrants 20 percent. A 30 percent evaluation is assigned where the impairment is severe. 38 C.F.R. § 4.71a , Diagnostic Code 5257. The Veteran's left knee disability has been manifested by mild instability of the left knee throughout this appeal. The August 2005 VA examination of the knee noted the Veteran's complaints of his left knee occasionally giving way. Physical examination revealed moderate crepitation, medial and lateral joint line tenderness, and moderate valgus and valrus stress pain. The July 2006 VA treatment report noted that the Veteran's left knee exhibited medial pseudolaxity. A September 2006 statement from the Veteran indicated that he had started to use a walker to ambulate. The February 2008 VA examination for joints noted that the Veteran's left knee exhibited moderate increased pain with valgus and valrus stress, and tracked slightly, laterally, with a clicking sound. The April 2011 VA examination for joints noted the Veteran's complaints of left knee buckling approximately three times per week, secondary to pain. Physical examination revealed positive patellar compression and inhibition testing in the left knee. The report also noted tenderness to the medial joint line, with mild attenuation of medial joint structures. The July 2012 VA examination noted the Veteran's complaints of his left knee giving out several times per week, occasionally causing him to fall. Although the VA examiner noted that this was likely pain related and does not represent true instability, that doesn't discount the presence of instability. Given the Veteran's statements and testimony herein, along with the supporting objective findings in the medical evidence or record, the Board also finds that the evidence shows mild instability in the left knee throughout the course of this appeal. Accordingly, a separate disability rating of 10 percent is warranted for mild instability in the Veteran's left knee. In reaching this conclusion, the Board does not find assignment of separate disability ratings under Diagnostic Codes 5257 and Diagnostic Code 5258 to be an impermissible pyramiding of benefits. 38 C.F.R. 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided). Instability in the knee can be present without any signs or manifestations of locking, pain, or effusion. D. Other Considerations Consideration of entitlement to an extraschedular evaluation has also been considered. Ratings will generally be based on average impairment, but to afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b) (2012). The rating criteria used to evaluate the knees contemplate instability, pain, effusion, and limitation of motion. The symptoms associated with the Veteran's left knee to include pain, limitation of motion, instability and locking are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's left knee disability that would render the schedular criteria inadequate. As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board notes that the issue of entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2012, the RO granted entitlement to TDIU in this case, effective February 5, 2008. Absent a notice of disagreement contesting the effective date of this award, this issue is not within the jurisdiction of the Board. ORDER An initial evaluation in excess of 20 percent for post surgery residuals, left knee arthritis, prior to March 23, 2011, is denied. An evaluation in excess of 40 percent for limitation of use of left knee, since March 23, 2011, is denied. A separate evaluation of 10 percent for instability of the left knee associated with left knee disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs