Citation Nr: 1328338 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 08-16 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for service- connected left knee, instability, associated with chondromalacia, left patella, with status post hemipatellectomy, rated 10 percent disabling prior to October 14, 2010, 100 percent disabling from October 14, 2010 to November 30, 2011, and 60 percent disabling from December 1, 2011. 2. Entitlement to an evaluation in excess of 10 percent for service-connected chondromalacia, right patella, status post arthroscopy (right knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from December 1974 to April 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that reduced the evaluation of the Veteran's left knee chondromalacia from 40 percent to 10 percent disabling and his right knee chondromalacia from 20 percent to 10 percent, respectively, each effective December 1, 2007. In November 2009 and February 2011, the Board remanded the claims for additional development. The case has been returned to the Board for further appellate consideration. As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). In September 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In a December 2009 decision, the Board agreed that the reduction in the evaluation of the Veteran's right knee and left knee disabilities was warranted and remanded that part of his appeal that sought higher ratings than 10 percent. A September 2011 rating action assigned a 60 percent evaluation for left knee, instability, associated with chondromalacia, left patella, with status post hemipatellectoy, effective December 1, 2011. The issue of entitlement to an increased evaluation for a left knee disability 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. The Veteran's right knee disability is not manifested by ankylosis; by moderate recurrent subluxation or lateral instability; by frequent episodes of locking; nor by impairment of the tibia and fibula. 2. Even considering any additional limitation of motion from pain and repetitive motion, right knee flexion has been limited to no less than 45 degrees. 3. Effective December 1, 2007, to March 11, 2011, resolving all reasonable doubt in the Veteran's favor and considering any additional limitation of motion from pain and repetitive motion, including during flare-ups, his right knee extension was limited to 10 degrees. 4. Effective March 12, 2011, considering any additional limitation of motion from pain and repetitive motion, resolving all reasonable doubt in the Veteran's favor and considering any additional limitation of motion from pain and repetitive motion, including during flare-ups, his right knee extension was limited to 15 degrees. CONCLUSIONS OF LAW 1. For the entire period on appeal, criteria for a rating in excess of 10 percent for chondromalacia, right patella, status post arthroscopy have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes (DCs) 5256, 5258, 5259, 5260, 5262, 5263 (2012). 2. For the entire period on appeal, criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5257 (2012). 3. Effective December 1, 2007, to March 11, 2012, the criteria for a 10 percent rating, but no higher, for limitation of extension of the right knee have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5261 (2012). 4. Effective March 12, 2012, the criteria for a 20 percent rating, but no higher, for limitation of extension of the right knee have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a letter dated in November 2007. This document provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The document provided adequate notice of how disability ratings and effective dates are assigned. The claim was subsequently readjudicated most recently in a September 2011 supplemental statement of the case. To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided; he was afforded a meaningful opportunity to participate in the adjudication of the claim. The Veteran has been afforded a hearing before a VLJ in September 2009 at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim for an increased evaluation for right knee disability. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant was provided the opportunity to present pertinent evidence. The record contains records of medical treatment received privately, and the report of VA examinations addressing the material elements of the claim. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA appropriately examined the medical history of the Veteran's claimed disability for compensation purposes addressing the claimed disorder. Findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted above, this case was previously before the Board in February 2011. In the February 2011 remand, the Board directed that the Veteran be afforded an appropriate VA examination. The Veteran underwent a VA examination in March 2011. The directive of the February 2011 remand has thus been accomplished. Again, the Board has a duty to ensure substantial compliance with its remand directives. See D'Aries, 22 Vet. App. at 97. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). By way of background, an April 2006 rating action granted assigned a 20 percent disability evaluation for chondromalacia of the right patella, status post arthroscopy, effective July 1, 2005. Within one year of the April 2006 determination, the Veteran did not express disagreement with the rating action, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the April 2006 rating action became final. In the July 2007 rating action on appeal, the 20 percent disability evaluation for chondromalacia of the right patella, status post arthroscopy, was reduced to 10 percent disabling effective December 1, 2007. As noted in the introduction, in a November 2009 decision, the Board determined that the reduction in the evaluation of the Veteran's right knee disability was warranted. The Veteran currently is assigned a 10 percent rating for chondromalacia, right patella, status post arthroscopy times two under DC 5260, a 10 percent rating for right knee instability under DC 5257, and a 10 percent disability rating for moderate tricompartmental arthritis of the right knee under DC 5260-5003. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has 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). However, consideration of the appropriateness of "staged rating" also is required. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003 (2012). Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, 20 percent evaluation for moderate impairment of the knee and a 30 percent rating if it is severe. 38 C.F.R. § 4.71a, DC 5257 (2012). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, DCs 5258 and 5259 (2012). Limitation of flexion of the knee warrants a 30 percent rating for limitation to 15 degrees and a 20 percent rating for limitation to 30 degrees, a 10 percent rating for limitation to 45 degrees. 38 C.F.R. § 4.71a, DC 5260 (2012). Limitation of extension of the knee warrants a 50 percent rating for limitation to 45 degrees, a 40 percent rating for limitation to 30 degrees, a 30 percent rating for limitation to 20 degrees, and a 20 percent rating for limitation to 15 degrees. 38 C.F.R. § 4.71a, DC 5261 (2012). The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2012). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). Additional rating criteria are found under DCs 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003. VAOPGCPREC 9-98 (1998). VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). Private treatment records from Dr. Wright dated in June 2006 reflect that Dr. Wright noted that it was possible that knee arthritis caused occasional buckling of the legs. The Veteran underwent a VA examination in June 2007. He reported pain of 4 to 5 on a scale of 1 to 10. He stated that there were flare-ups to 8 to 9 with walking down stairs, or prolonged standing greater than 20 minutes. He reported a history of swelling, history of popping with pain, and no history of locking. He stated that there was a history of giving way in the knee. He used a brace upon examination. He denied problems with activities of daily living. He reported that he used an assistive device and could walk 100 yards with significant pain. He stated that he worked at a post office and was able to work through the pain but did not have to miss any work for this. Upon physical examination, the right lower extremity was neurovascularly intact distally, motor and sensory function grossly. Range of motion was zero to 115 degrees. The active range of motion and passive range of motion was the same, no change with repetition, and there was pain throughout the full arc of motion. The Veteran had patellofemoral crepitus, was stable to varus and valgus stress at zero degrees and 30 degrees, negative Lachman's, negative anterior and posterior drawer, negative McMurray's, tender to palpation in the medial joint line, tender to palpation medial lateral facet of the patella. There was no effusion on examination. The Veteran had a positive patella grind. X-ray findings revealed no fracture, dislocation or boney destructive lesion. There was a mild medial joint space narrowing. There was spurring on the superior and inferior aspect of the patella on the lateral view of the patellofemoral joint. The examiner diagnosed mild degenerative joint disease and chondromalacia of the right knee. The examiner noted that there was mild to moderate discomfort associated with examination. The examiner stated it is conceivable that pain could further limit function as described, particularly with repetition. The examiner noted that it is not feasible to express any of this in terms of additional limitation of motion as these matters cannot be determined with any degree of medical certainty. In August 2007, the Veteran reported knee pain, instability, and falls due to the right knee giving way. He stated that he had problems getting up from any sitting position. He reported problems getting dressed and undressed. He stated that he had problems climbing stairs and ladders. He reported that he could not squat and get back up. He stated that his knee locked while walking, which sometimes caused him to fall. The Veteran had another VA examination in January 2009. He reported pain at 7 out of 10, which was 10 out of 10 upon any movement of the leg, standing, sitting, climbing, walking, and getting up from the bed, chair or a toilet or tub. He noted that he used a cane to alleviate the symptoms of these flare-ups. He reported that a cane helped moderately with ambulation. He stated that his right knee affected his activities of daily living, as he was no longer able to ambulate for enjoyment or walk or run for exercise. He reported that this impacted his occupation, as he was a mail processing technician and had difficulty finishing his shift because he was on his knee all day. Upon physical examination, the right knee was neurovascularly intact. There was stability, no pain or laxity on varus or valgus stress, and no pain or laxity on anterior posterior stress about the knee at 30 degrees or 90 degrees. The Veteran had negative McMurray's. He had positive tenderness to palpation along the medial and lateral joint line, positive patellofemoral grind. There was full extension to 90 degrees of flexion actively and passively with pain throughout the arc of motion, with the same range of motion upon repeated range of motion. He had increased pain on repeated range of motion. The examiner diagnosed right knee degenerative joint disease severe, as evidenced by physical examination and radiographs. There was no pain with range of motion testing. The examiner noted that it was conceivable that pain could further limit function as described particularly after being on his feet all day. The examiner stated that it was not feasible to attempt to express this in terms of additional limitation of motion, as these matters cannot be determined with any degree of medical certainty. Private treatment records from BMH Collierville dated in January 2009 reflect that right knee ligaments were intact. The lateral meniscus appeared normal. There was mild cartilage thinning of the medial compartment of the knee and there was surface irregularity with mild cartilage loss of the patella. There was a focal osteochondral defect involving the posterior aspect of the lateral femoral condyle. There was a small joint effusion. The Veteran underwent another VA examination in March 2010. He reported pain at 8 out of 10 located primarily anteriorly. He stated that he used a brace and cane, which helped him moderately. He reported that he was able to walk less than 15 minutes or 50 feet. He described flare-ups that occurred daily, which were worse with any movement, especially bending the knees. He reported that the right knee affected his daily activity by causing some pain every minute of the day. He stated that this affected his ability to do his job as a technician because he was unable to walk, stand, and bend his knees. Upon physical examination, the skin was intact and there was a trace effusion. Active range of motion lacked 5 degrees of extension. He could flex to approximately 75 degrees of flexion with pain. After repetitive range of motion, neither pain nor range of motion changed. The Veteran was nontender to palpation on the joint line and the knee was stable to varus and valgus stress. There was a negative Lachman, negative posterior drawer, and a negative McMurray. The examiner diagnosed mild right patellofemoral arthritis and limited flexion of the right knee. The examiner noted that it is certainly feasible that the Veteran could have increasing pain and loss motion, particularly after activity. The examiner stated that it is a matter of speculation to try and address these in medical terminology. The Veteran underwent another VA examination on March 12, 2011. He reported pain at 8 out of 10 which increased to 10 out of 10. He stated that he used an assistive device with only moderate relief. He reported that he could walk 15 minutes or 50 feet before he started having pain. He stated that there were daily flare-ups with any activity. He reported pain at night, pain putting on shoes, pain when climbing stairs, pain when squatting, pain with putting on pants, pain with a feeling of instability, and pain with twisting. He stated that the knee locked when he tried to walk. He reported that the knee was unstable to the point that it tried to bend the wrong way. He stated that activities of daily living, daily life, his relationship with his wife, and his job were affected. Upon physical examination, range of motion was zero to 70 degrees. This was decreased to 10 to 60 degrees with repetitive testing. There was no difference between active and passive range of motion. There was crepitus throughout range of motion. There was no evidence of varus or valgus deformity noted. No effusion was noted. There was a stable Lachman's and stable anterior and posterior drawer testing. There was negative McMurray's, although there was tenderness to palpation along the medial and lateral joint lines. Extensor echanis was intact. The examiner diagnosed moderate tricompartmental arthritis of the right knee. The examiner noted that the Veteran had significant decrease in range of motion and increased pain with repetitive testing. The examiner stated that, to try and quantify how much he may have in the future after using his legs all day and standing, cannot be made with any degree of medical certainty. The examiner noted that the Veteran appeared to have limitations with repetitive ranges of motion. There is no evidence that the right knee disability is productive of ankylosis or complete immobility of the knee joint. For example, in June 2007 range of motion was zero to 115 degrees, in June 2009 there was full extension to 90 degrees of flexion, in March 2010 flexion was to 75 degrees, and in March 2011 range of motion was zero to 70 degrees, decreased to 10 to 60 degrees with repetitive testing. Thus, DC 5256 is not applicable. The Board finds that the Veteran's recurrent subluxation or lateral instability is no worse than slight. Although the Veteran has reported right knee instability, he denied a history of giving way in June 2007. Moreover, the January 2009 VA examiner noted that there was right knee stability. Thus, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent under DC 5257. As noted above, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. The Board finds that a rating in excess of 10 percent for limitation of flexion is not warranted. For example, flexion was to 115 degrees in June 2007, 90 degrees in January 2009, 75 degrees with pain in March 2010, and to 60 degrees with repetitive testing in March 2011. Thus, even upon consideration of functional loss due to pain, weakness, excess fatigability, or incoordination, flexion is limited to no worse than 45 degrees and an increased rating under DC 5260 is not warranted. Resolving all doubt in the Veteran's favor, the Board finds that for the period from December 1, 2007, to March 11, 2012, the Veteran's extension was limited to no worse than 10 degrees. For example, in June 2007, extension was to zero degrees, the Veteran lacked 5 degrees of extension in March 2010. Thus, given the range of motion findings and the Veteran's competent reports of pain, and in light of additional disability during flare-ups, the Board finds that his right knee extension was limited to no worse than 10 degrees and a 10 percent rating, and no more, was warranted under DC 5261 prior to March 12, 2011. The examiner who performed the March 12, 2011, VA examination reported that the Veteran had extension limited to 10 degrees, with pain. As noted above, the examiner indicated that the Veteran's pain limited his extension after repetitive testing but could not quantify further the extent of his further limitation. Thus resolving all reasonable doubt in the Veteran's favor, to include additional impairment during flare-ups, the Board finds that, effective March 12, 2011, his right knee extension resulted in disability analogous to limitation of extension to 15 degrees, warranting a 20 percent rating under DC 5261. The Board has found no other diagnostic codes which would provide higher or separate ratings for the Veteran's right knee disability. There is evidence of mild cartilage thinning of the medial compartment of the knee and mild cartilage loss of the patella. However, there is no evidence of dislocated semilunar cartilage. Moreover, the evidence as a whole does not reflect frequent episodes of "locking," into the joint. Although the Veteran reported locking in August 2007, he previously denied a history of locking in June 2007. Thus, the evidence as a whole does not reflect frequent locking. Additionally, there is no evidence of removal of semilunar cartilage that is symptomatic; malunion or nonunion of the tibia and fibula; or genu recurvatum, therefore Diagnostic Codes 5258, 5259, 5262, and 5263 are not applicable. Extraschedular Consideration and TDIU In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran receives multiple ratings for his right knee that have fully considered his complaints such as pain, limitation of flexion and extension as well as for instability. Further, there is no showing that the right knee disability is particularly unique so as to warrant referral for an extraschedular rating. As such, the Board concludes that the Veteran's schedular ratings are adequate to rate the distinct manifestations of the Veteran's right knee disability. Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). 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, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). To date, the Veteran has not reported that he is unable to obtain or retain employment due to his right knee disability. As such, a TDIU is not raised by the record. ORDER An evaluation in excess of 10 percent for chondromalacia, right patella, status post arthroscopy is denied. An evaluation in excess of 10 percent for limitation of right knee flexion is denied. Subject to the law and regulations governing payment of monetary benefits, effective from December 1, 2007, to March 11, 2011, a separate 10 percent rating for limitation of extension of the right knee is granted. Subject to the law and regulations governing payment of monetary benefits, effective March 12, 2011, a 20 percent rating for limitation of right knee extension is granted. REMAND The Veteran underwent a total left knee arthroplasty in December 2010. As the claims file does not contain a VA opinion that adequately discusses how the Veteran's range of motion was affected by pain prior to the total left knee arthroplasty, the Board finds that a retrospective medical opinion addressing how the Veteran's range of motion was affected by pain for the period on appeal prior to the left knee replacement surgery would be most helpful in determining the appropriate disability ratings for the period on appeal prior to the left knee replacement surgery. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). The Board also notes that, following knee replacement surgery, the appropriate DC is 5055. Under DC 5055, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Diagnostic Code 5055 refers to chronic residuals consisting of painful motion or weakness. While that criteria does necessarily encompass any other description of disability resulting from painful motion and weakness, reasonably including fatigue and any incoordination due to weakness or pain, it does not encompass instability, a manifestation that could exist without pain or weakness. Therefore, a rating under Diagnostic Code 5055 does not preclude a separate additional rating under Diagnostic Code 5257 for instability. See Thomas v. Nicholson, No. 04-554 (U.S. Vet. App. Jan. 27, 2006); see also Aiken v. Nicholson, No. 03-1351 (U.S. Vet. App. Oct. 13, 2005). Although these are single-judge, non- precedential Court decisions, a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992). Thus, on remand, the RO must consider whether a separate disability rating for instability of the left knee under Diagnostic Code 5257 is warranted. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit statements from himself and from others who observed his left knee symptoms first hand, which offer descriptions of the frequency and severity of his left knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After the above actions, send the claims file to an appropriate VA examiner, for a retrospective medical opinion as to how the Veteran's left knee range of motion was affected by pain for the period on appeal prior to total left knee arthroplasty in December 2010. The examiner should render specific findings with respect to whether there was objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is indicated, the physician should indicate the point at which pain began, if possible. In addition, the examiner should indicate whether, and to what extent, the Veteran experienced likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 3. Then, readjudicate the Veteran's claim. Consideration should be given as to whether a separate disability rating for instability of the left knee under Diagnostic Code 5257 is for application. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs