Citation Nr: 1322518 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-19 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for right knee arthritis with synovitis and patellar chondromalacia. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee arthritis with synovitis and patellar chondromalacia. 3. Entitlement to an initial compensable evaluation for right knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013. 4. Entitlement to an initial compensable evaluation for right knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2012, the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at this hearing has been associated with the record. In December 2012, this matter was last before the Board at which time it was remanded for further development. In a February 2013 rating action, the Appeals Management Center (AMC) assigned a 10 percent evaluation for each knee for lateral instability, effective February 12, 2013. Because the maximum benefit was not granted, the issues of entitlement to higher evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, the Veteran reported during the February 2013 VA examination, and other times during his appeal, that he had to quit his job as a truck driver due to his knee disabilities, which precluded him from being able to work the clutch. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that he is unemployable due to disabilities currently on appeal, the issue of a TDIU is before the Board. When this matter was last before the Board, the Board also referred issues of entitlement to service connection for a right ankle disability, to include as secondary to service-connected bilateral knee disabilities and entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral knee disabilities. A review of the record, to include the Virtual VA electronic records system, does not indicate that these issues have been acted upon by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again REFERRED to the AOJ for appropriate action. 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. FINDINGS OF FACT 1. Throughout the applicable period, the Veteran's right knee arthritis with synovitis and patellar chondromalacia has caused pain and limitation of activity, but has not manifested by ankylosis, impairment of the tibia and fibula or genu recurvatum; flexion of the right knee has never been limited to 45 degrees or less and extension has always been to zero degrees. 2. Throughout the applicable period, the Veteran's left knee arthritis with synovitis and patellar chondromalacia has caused pain and limitation of activity, but has not manifested by ankylosis, impairment of the tibia and fibula or genu recurvatum; flexion of the right knee has never been limited to 45 degrees or less and extension has always been to zero degrees. 3. Prior to February 12, 2013, the Veteran's right knee did not exhibit objective evidence of recurrent subluxation or lateral instability; from February 12, 2013, the knee exhibited slight, but no worse, subluxation and lateral instability. 4. Prior to February 12, 2013, the Veteran's left knee did not exhibit objective evidence of recurrent subluxation or lateral instability; from February 12, 2013, the knee exhibited slight, but no worse, subluxation and lateral instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for right knee arthritis with synovitis and patellar chondromalacia have not been met or approximated at any time during the current appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5020, 5256, 5258-5263 (2012). 2. The criteria for an evaluation in excess of 10 percent for left knee arthritis with synovitis and patellar chondromalacia have not been met or approximated at any time during the current appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5020, 5256, 5258-5263 (2012). 3. The criteria for entitlement to an initial compensable evaluation for right knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for entitlement to an initial compensable evaluation for left knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); 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). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus, that burden has not been met in this case. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). In a letter dated in November 2008, the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim, and as to the disability rating and effective date elements of his claims. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of his disabilities of the knees, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court"') has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that Diagnostic Code 5020 directs that synovitis is rated on limitation of motion of affected parts as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides 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. When however, the limitation of motion of the specific joint or joints involved is non-compensable 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Id. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Id. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04. (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Id. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. Id. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts In November 2008, the Veteran filed his claim for service connection for bilateral knee problems. He was afforded a VA examination in March 2009. At the time of the March 2009 VA examination, it was documented that the Veteran worked as a truck driver, and worked when a job was available. He also complained of pain in both knees, with worse pain on the right. He denied being totally well "at either knee" for even 3 months following his discharge from service. At the time of the examination, orthopedic treatment involved careful activity, occasional use of a brace on the right knee and some special exercising. He was not using oral medication or a cane. His comfort level allowed for driving for about 1 hour, limited by pain in the right lower extremity, inter alia. He reported that the right knee had some collapsing and there was some occasional partial locking of the right knee. Both knees had feelings of instability, but mostly a feeling of weakness. They did not feel numb and he had no history of surgery. He reported subjective feelings of pain, weakness and easy fatigue in the knees. He also related impaired coordination that bothered him with respect to the right knee in terms of collapsing. Flare-up with activity was most apt to bother the right knee. Continued activity would sometimes worsen the left knee. Resting for an hour did not help much. Objective examination noted that the Veteran had some excess weight. Muscle condition was average. Cooperation was very good and there was no limping. He was able to rise on the toes and heels. Legs were equal in length and had good alignment. Both knees exhibited hyperextension of 5 degrees. Both knees flexed to 140 degrees. Both knees had mild pain over the full range of motion. There was no increase in joint fluid at either knee. Patellar pain and crepitation were bothersome bilaterally and rose on the right. The anterior tendons were nontender. The quadriceps muscles had satisfactory and equal development. The joint lines were nontender. Ligaments were normal. McMurray and Lachman's tests were negative, confirming that there was no objective evidence of lateral instability or subluxation. Knee pain was mostly at the patella, bilaterally, and worse on the right. X-rays showed moderate arthritis, and degenerative arthritis was also assessed. Examination also resulted in an assessment of chronic synovitis plus symptomatic patellar chondromalacia. In the comments section the examiner remarked that the Veteran had subjective symptoms and flare-ups as outlined above. He remarked that decreasing the flexion of each knee by 40 degrees represented the various symptoms of each knee. He noted further that repeated movement times 3 did not cause flare-ups or loss of motion. He also related that his working capacity was diminished, in part, by knee problems, noting that the Veteran was able to work as a truck driver by being careful with his activities. In March 2009, the Veteran offered his reasons for disagreeing with the assigned 10 percent evaluations. In particular, he related that he felt his evaluations were inconclusive and that the examiner did not provide an in-depth medical examination. In a March 2010 statement, the Veteran offered further explanation for disagreeing with the assigned 10 percent evaluations. He reiterated that he felt that his VA examination was not thoroughly done. He also related that he had severe pain, swelling and lack of motion in his knees. In terms of work interference, he related that he continued to work as a professional truck driver and that he had missed many days of work due to lack of physical strength and mobility in both of his knees to perform his scheduled duties. He also related that his quality of life had suffered. In March 2012, the Veteran testified before the Board. At this time he reiterated that he felt that his VA examination was not thorough and that it was rushed. He also related that on the day of the examination his knees were "in much better shape" than usual. He noted that he had mornings where he could not get out of bed due to his bilateral knee condition and that sometimes they would "swell up like a cantaloupe." He testified that he had to go back to working a 4 day schedule driving truck due to the conditions. He related that after a day of driving his knees did not "want to unlock and open up" and that the condition had gotten worse. He stated that he had used knee braces, but had ceased doing so as they would not stay on his legs. He also had used Ace bandages and the like, but did not take any medications, including over-the-counter medications, as he did not want to impair his driving ability. He related having trouble with exercise, particularly walking, due to the condition and that he had put on some weight due to his inability to walk each morning. He related that he tried to take short walks a couple of times per week. He testified that he had not driven truck since December 2011 due to problems with his knees, but noted that his flare-ups were sporadic. He related having problems operating his clutch due to knee pain, as well. He complained of constant pain and symptomatology, but reported flare-ups on a frequent basis. He related that recently, after taking a walk, both knees felt like they "had a heating pad on them." He related relief with ice and heat and that he tried to avoid using his knees. He related that it was harder to walk during flare-ups and described periods of staggering. He described sensations of instability and sharp pain with each step. He described an instance where he had tried to walk a long distance, but could not continue and had to be driven home due to pain. He denied that the knee had dislocated in any sense. Due to his complaints of worsening symptomatology, in December 2012, the Board remanded the claim to obtain another VA examination. In February 2013, the Veteran was afforded a VA examination. Examination resulted in diagnoses of degenerative joint disease, synovitis and chondromalacia patella. At the time of the examination the Veteran complained of pain, swelling, stiffness, decreased range of motion and instability. He denied any history of knee surgery. He reported flare-ups and increased symptomatology with prolonged standing and walking or when attempting most movements, including kneeling, squatting or climbing. Range of motion measurements were obtained with a goniometer. Flexion of the right knee was to 100 degrees, with painful motion beginning at 90 degrees. Right knee extension was to zero degrees, and without pain. Left knee flexion was likewise to 100 degrees, with painful motion beginning at 90 degrees. Extension was to zero degrees, and without pain. He was able to perform repetitive use testing times three and such testing did not result in additional limitation of range of motion. In terms of functional loss, examination revealed less movement than normal, pain on movement, swelling and interference with sitting, standing and weight-bearing in each knee. Weakened movement was found in the right knee. There was no pain on palpation. Right knee flexion and extension were 4/5 in terms of strength. Left knee flexion and extension were 5/5 in terms of strength. Testing resulted in a finding of no anterior or posterior instability in either knee. However, testing did show 1+ (zero to 5 mm.) medial-lateral instability in each knee. There was evidence of slight recurrent patellar subluxation/dislocation in each knee. He did not have shin splints or a meniscal condition. He had not had any surgery on the knees, including joint replacement. He was not then using any assistive devices. X-rays showed degenerative arthritis of both knees, but no evidence of patellar subluxation. In terms of functional impact, the conditions were found to impact the Veteran's ability to work. In this regard, the examiner noted that the Veteran could not tolerate prolonged standing and walking. He also could not perform frequent kneeling, squatting or climbing. The Veteran had discontinued his job driving truck due to his inability to repeatedly use the clutch pedal. Analysis As outlined above, the Veteran has been awarded separate evaluations for painful motion and lateral instability of each knee. The Board will address each in turn for the sake of clarity. In opening, however, the Board notes that that Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 cannot provide for a higher evaluation. As outlined above, ankylosis, and dislocated semilunar cartilage have not been demonstrated on objective examination. No impairment of the tibia and fibula has been demonstrated. Genu recurvatum has not been shown. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Painful Motion The Veteran's right and left knees have each been assigned a 10 percent evaluation for non-compensable limitation of motion. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260; DeLuca v. Brown, 8 Vet. App. 202 (1995) (Painful motion with the joint or periarticular pathology, which produces disability, warrants the minimum compensation). A rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. The knee is a major joint. 38 C.F.R. § 4.45. As such, in order to substantiate evaluations in excess of 10 percent, the evidence must objectively demonstrate compensable limitation of motion in either flexion or extension and to a degree that would allow for an award in excess of the already assigned 10 percent evaluations. In order to substantiate compensable evaluations, i.e. 10 percent or greater, for limitation of motion, the evidence must, at least, demonstrate limitation of flexion to 45 degrees or less and/or limitation of extension to 10 degrees or more. As noted above, separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint. See VAOPGCPREC 09-04. As outlined above, VA examinations have never objectively shown limitation of flexion approaching 45 degrees or less, or limitation of extension to 10 degrees or more. At VA examination in March 2009, flexion of each knee was limited to 100 degrees at most, with consideration of additional loss of motion during flare-ups. DeLuca, supra. Moreover, VA examination in February 2013, likewise with consideration of the DeLuca factors, demonstrated flexion limited to 90 degrees, at most. These VA examinations have never shown limitation of extension approaching 10 degrees or more. Indeed, extension has remained full to zero degrees, including with consideration of flare-ups, pain on use and the DeLuca factors. Accordingly, evaluations in excess of 10 percent cannot be awarded under the schedular criteria pertaining to limitation of flexion and extension. The objective evidence does not demonstrate compensable limitation of flexion or extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Thus, evaluations of 10 percent are denied for each knee, which continue to be assigned 10 percent disability evaluations under Diagnostic Code 5003 for non-compensable limitation of motion. 38 C.F.R. § 4.71a. Lateral Instability As outlined above, the Veteran has been awarded separate evaluations for lateral instability of each knee. See VAOPGCPREC 23-97. Each award was granted effective February 12, 2013, the date of the above-outlined VA examination demonstrating objective evidence of instability and subluxation. Thus, the Board must evaluate whether prior to that date a compensable evaluation is warranted and whether evaluations in excess of 10 percent can be substantiated thereafter. Fenderson, supra. Prior to February 12, 2013, the Board does not conclude that separate compensable evaluations are warranted. In this regard, the Board acknowledges the Veteran's subjective complaints of feelings of instability, which he is certainly competent to relate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Nevertheless, objective examination found no lateral instability or subluxation and Lachman's testing was normal. Lachman's test is a test of the anterior cruciate ligament. 2 S. Turek, Orthopaedics: Principles and Their Application, at 1,292 (4th ed. 1984). The objective evidence outweighs the Veteran's objective lay reports. The objective findings of stability and lack of subluxation of the knees are based on specific testing done by a qualified examiner. It is not until the February 12, 2013, VA examination that lateral instability of each knee was demonstrated. Thus, if the lateral instability is found to be either moderate or severe, 20 percent or 30 percent evaluations, respectively, are proper. The terms "moderate," and "severe" are not defined in the Schedule. 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. VA examination on February 12, 2013, objectively demonstrated medial-lateral instability of each knee. Testing quantified the level of instability of 1+ (zero to 5 mm.) and the examination report notes that there was evidence of slight recurrent patellar subluxation/dislocation in each knee. In terms of instability, 1+ was the lowest possible grade allowed for quantification in the examination report, with higher quantifications of 2+ (5 to 10 mm.) and 3+ (10 to 15 mm.) also allowed. Thus, the Veteran's knees each exhibited the lowest quantification of medial-lateral instability, i.e. 1+, and subluxation was characterized as slight. Under these circumstances, the Board does not find that recurrent subluxation or lateral instability can be characterized as anything greater than slight. Objective testing and quantification has justly indicated that this symptomatology is lowest in quantifiable grade and thus the Board concludes that it is best characterized as slight in severity. Thus, from February 12, 2013, evaluations in excess of 10 percent are not warranted. Extraschedular Consideration An extraschedular disability rating will be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the evaluations for the service-connected bilateral knee disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. They particularly contemplate pain on motion, as well as the level of subluxation and instability demonstrated in each knee. In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the schedule for rating disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of these claims for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for right knee arthritis with synovitis and patellar chondromalacia is denied. Entitlement to an initial evaluation in excess of 10 percent for left knee arthritis with synovitis and patellar chondromalacia is denied. Entitlement to an initial compensable evaluation for right knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013, is denied. Entitlement to an initial compensable evaluation for right knee lateral instability prior to February 12, 2013, and in excess of 10 percent from February 12, 2013, is denied. REMAND The Veteran reported at the February 2013 VA examination that he had to quit his job as a truck driver as his bilateral knee disabilities prevented him from performing his duties. As referenced herein above, the Board has therefore found that the issue of entitlement to a TDIU has arguably been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims has held that a request for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. Id. at 455. Accordingly, the matter should be remanded to the RO for development and adjudication of whether referral of the Veteran's claim for consideration of a TDIU on an extraschedular basis is warranted, in accordance with the holding in Rice. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that satisfies all VCAA notice obligations with regard to the issue of entitlement to a TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for a TDIU. Also, inform the Veteran of the division of responsibility between him and VA in producing or obtaining that evidence or information. The letter should include an explanation as to the information or evidence needed to establish a disability rating and an effective date in the event of an award of the benefit sought, as outlined by the Court in Dingess/Hartman. Additionally provide the Veteran with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. 2. After the development directed in paragraph 1 has been completed, refer the claims file to an appropriate medical professional to review the file and address whether the Veteran's service-connected disabilities alone prevent him from securing and following a substantially gainful occupation. The claims file should be available for review by the examiner. The medical professional should note that the claims file has been reviewed. Opinions should be provided based on the results of a review of the medical evidence of record and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If the examiner finds that a physical examination is necessary, the Veteran should be scheduled for an examination to address this question. 3. Thereafter, adjudicate the remaining issue on appeal, i.e., TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. (CONTINUED ON NEXT PAGE) 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. 2012). ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs