Citation Nr: 1331014 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-10 016A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 40 percent, from September 2, 2010, for left knee patellar tendonitis. 2. Entitlement to an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 50 percent, from September 2, 2010, for right knee patellar tendonitis. 3. Entitlement to an initial rating greater than 10 percent for right knee instability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran had a video hearing before the undersigned Board Acting Veterans Law Judge in June 2011 and the transcript is of record. The case was brought before the Board in June 2010, at which time these claims along with a claim seeking entitlement to service connection for gastro-esophageal reflux disorder (GERD) were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. In a February 2011 rating decision, the Veteran was awarded service connection for GERD. The benefit sought on appeal being fully granted, the issue is no longer before the Board here. In contrast, a rating decision dated December 2010 awarded the Veteran increased ratings for the left knee (40 percent, effective September 2, 2010), and right knee (50 percent, effective September 2, 2010). The December 2010 rating decision also awarded the Veteran a separate 10 percent right knee rating for instability, effective back to the date of claim (March 29, 2005). After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues, to include the separate rating awarded, are still properly before the Board here and the issues have been appropriately rephrased above. FINDINGS OF FACT 1. Prior to September 2, 2010, the Veteran's left knee disability was manifested by chronic pain, swelling, tenderness over the subpatellar, patella-femoral pain syndrome, tendonitis, full extension, and limited flexion no worse than 90 degrees, but with no objective evidence of instability, meniscal abnormality, joint effusion, locking, ankylosis, dislocation, or subluxation. 2. From September 2, 2010, the Veteran's left knee disability is manifested by chronic pain, swelling, tenderness over the subpatellar, patella-femoral pain syndrome, tendonitis, limited extension no worse than 25 degrees, and limited flexion no worse than 110 degrees, but with no objective evidence of instability, meniscal abnormality, joint effusion, locking, ankylosis, dislocation, or subluxation. 3. Prior to September 2, 2010, the Veteran's right knee disability was manifested by chronic pain, swelling, tenderness over the subpatellar, patella-femoral pain syndrome, tendonitis, mild instability due to a small ligament tear, meniscal abnormality with small joint effusion and meniscal cyst, full extension, and limited flexion no worse than 90 degrees, but with no objective evidence of locking, ankylosis, dislocation, or subluxation. 4. From September 2, 2010, the Veteran's right knee disability is manifested by chronic pain, swelling, tenderness over the subpatellar, patella-femoral pain syndrome, tendonitis, mild instability due to a small ligament tear, meniscal abnormality with small joint effusion and meniscal cyst, limited extension no worse than 40 degrees, and limited flexion no worse than 100 degrees, but with no objective evidence of locking, ankylosis, dislocation, or subluxation. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 40 percent, from September 2, 2010, for left knee patellar tendonitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5024 and 5261 (2012). 2. The criteria for an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 50 percent, from September 2, 2010, for right knee patellar tendonitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5024 and 5261 (2012). 3. The criteria for an initial rating greater than 10 percent for instability of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.71a, DC 5257 (2012). 4. The criteria for an initial, separate 20 percent rating for meniscal cyst with joint effusion of the right knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.14, 4.40, 4.45, 4.71a, DC 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's pre-adjudication letters sent to the Veteran in April 2005 and May 2005 advised him of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). A May 2008 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Thereafter, the claim was readjudicated several times, most recently in a February 2011 supplemental statement of the case. Accordingly, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process and which will be considered in the evaluation of this claim. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The RO provided the Veteran appropriate VA examinations in August 2006 and September 2010. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA, which records are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The 2006 and 2010 VA examination reports are thorough and supported by VA outpatient treatment records. There is no rule as to how current an examination must be, and the Board concludes the examinations in this case are adequate upon which to provide a fully informed decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. The Veteran's bilateral knee disabilities were originally rated under hyphenated diagnostic codes 5024-5003. In a December 2010 rating decision, increased ratings were granted under hyphenated codes 5024-5261. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Initially, the Veteran's bilateral patellar tendonitis was rated analogously as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Ankylosis of a knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees or a 50 percent evaluation if it is in flexion between 20 and 45 degrees. Extremely unfavorable ankylosis of a knee at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel has also held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September, 2004). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. While the Board must consider the functional impairment resulting from orthopedic disabilities, such as the Veteran's right knee loss of motion and DJD, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings such as Diagnostic Code 5257 (for instability or recurrent subluxation) because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. at 12 (1996). It is noteworthy that a rating or combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68, Amputation Rule (emphasis added). An amputation of the middle or lower thirds of a leg is rated 60 percent disabling. See 38 C.F.R. § 4.71a, DCs 5162. Thus, the Veteran's rating or combined rating for either knee cannot exceed 60 percent as a matter of law. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. The Veteran was initially awarded 10 percent ratings for both knees due to findings of chronic pain and patellar tendonitis bilaterally. See September 2006 rating decision. Thereafter, in a December 2010 rating decision, he was awarded an increased rating of 40 percent for the left knee and 50 percent for the right knee, effective September 2, 2010, based on VA examination findings at that time indicative of limited extension. The Veteran was also awarded a separate 10 percent rating dated back to the initial claim (March 29, 2005) for findings of right knee mild instability. The Veteran claims he has suffered with bilateral chronic pain of the knees since a 1996 in-service injury. During his hearing before the Board in June 2011, the Veteran indicated he had chronic pain, locking of both knees, the right worse than the left, along with swelling, during the entire appellate time frame. Thus, he believes his increased ratings of 40 percent for the left knee and 50 percent for the right knee, should be in effect dating back to his initial claim, March 29, 2005. VA outpatient treatment records indicate complaints of chronic bilateral knee pain during the entire appellate time frame. In March 2005, outpatient treatment records indicate no effusion, warmth, normal range of motion bilaterally, with no ligamentous laxity, and mildly positive patellar grind of the left leg. He was referred to physical therapy in May 2005 for his complaints of chronic pain. At that time, x-rays revealed very minimal spurring of the tibial spines bilaterally, but otherwise normal findings. VA outpatient treatment records also include MRI findings and opinions from the Veteran's VA physicians dated in November 2005 and February 2006. In November 2005, the Veteran's VA physician indicated the Veteran's MRI revealed a small radial tear at the junction of the posterior horn and posterior root ligament with a small subjacent meniscal cyst on the right knee. Similarly, in February 2006, the Veteran's VA physician indicated MRI findings of a small medial meniscal tear on the right knee with small effusion. The physician also noted chronic knee pain for 10 years, the right side worse than the left. May 2006 VA outpatient treatment records further note a diagnosis of bilateral patella-femoral pain syndrome. In April 2008, VA outpatient treatment records again indicate bilateral knee pains and aching with tenderness and crepitus, but overall good range of motion. An October 2010 VA outpatient record merely indicates "aching" knees that affect the Veteran's sleep. There are no records of any VA treatment beyond 2010 through May 2013. The Veteran was afforded two VA examinations during the pendency of the appeal. Initially, the Veteran was afforded a VA examination in August 2006. At that time, the Veteran complained of chronic pain since the February 1996 military injury. Pain was his main complaint, with flare-ups on a weekly basis. The examiner also noted an additional limitation of motion of 10 to 20 degrees bilaterally during joint flare-ups. The examiner noted the MRI findings of right knee small effusion and ligamentous tear. On examination, the examiner found no evidence bilaterally of deformity, giving way, dislocations, subluxation, locking, stiffness or weakness. The left knee, moreover, had no evidence of instability. On the right knee, due to the mild ligament tear, the examiner found slight instability on the right side along with meniscus abnormality with effusion and meniscal cyst. Range of motion testing revealed normal extension bilaterally, but limited flexion on the right side to 110 degrees, with pain at 90 degrees and further limitations to 100 degrees on repetition. Limited flexion was also noted on the left side to 115 degrees, with pain at 90 degrees and further limitations to 105 degrees on repetition. The examiner noted crepitation, tenderness, and pain on movement. The 2006 examiner diagnosed the Veteran with bilateral patella-femoral pain syndrome; bilateral patellar tendonitis; and a right small radial tear ligament. The Veteran was afforded an additional VA examination in September 2010. At that time, the Veteran's main complaint was chronic pain, progressively worsening. He did not report any history of surgeries. X-rays at that time were normal bilaterally, but the examiner did note the MRI findings of 2005 of right knee ligament tear, meniscal cyst, and small effusion. On examination, the examiner did not find any evidence bilaterally of deformity, weakness, dislocation, subluxation, or locking. The examiner did note bilateral pain and stiffness, as well as the Veteran's intermittent use of a cane for ambulation. Both knees had subpatellar tenderness, but the left knee did not exhibit any instability or meniscus abnormality. The examiner observed right knee crepitus, tenderness, pain at rest, guarding of movement, clicks and snaps, mild instability due to a ligament tear, meniscus abnormality due to a tear and meniscal cyst. No ankylosis was found bilaterally. Range of motion testing revealed the left knee had limited flexion to 120 degrees, 110 degrees after repetition. Extension of the left knee was noted to be limited to 20 to 25 degrees after repetition. The right knee had limited flexion of 110 degrees, and 100 degrees after repetition. Extension of the right knee was noted to be limited to 35 to 40 degrees after repetition. Left Knee Analysis In short, the medical evidence with respect to the knee indicates normal x-rays and MRIs throughout the appellate time frame with no objective confirmation of instability, meniscal abnormality, ligament abnormality, locking, dislocation, subluxation or ankylosis. A May 2005 x-ray notes "very minimal" spurring of the tibial spines, but otherwise normal findings. Indeed, VA outpatient treatment records from that same time (March 2005) indicate normal range of motion, no ligamentous laxity, negative McMurray and Lachman tests, and negative valgus/varus. Rather, the Veteran's left knee disability has consistently been manifested by chronic pain, tenderness, patellar tendonitis, and patella-femoral pain syndrome. Medical treatment records confirm, at least at times, some amount of limitation of motion, but prior to the September 2, 2010 VA examination, the Veteran exhibited normal extension at all times, and flexion limited no worse than 90 degrees. Therefore, prior to September 2, 2010, the Veteran did not meet the criteria for a compensable rating under any potentially applicable diagnostic code. His range of motion findings are non-compensable under DCs 5260 and 5261. He did not have any objective evidence of locking, instability, joint effusion, dislocation, or other ligament and/or meniscus abnormality. The Veteran was diagnosed with patella-femoral pain syndrome and tendonitis, but x-rays never confirmed evidence of arthritis. Thus, a compensable rating under 5024-5003 was also not warranted. The Veteran's initial 10 percent rating was awarded mainly in consideration of the Veteran's complaints of chronic pain and functional loss. That is, in accordance with 38 C.F.R. §§ 4.40, 4.45, functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint was considered. Although the Veteran's left knee disability did not meet the schedular criteria of a compensable rating prior to September 2, 2010, the medical evidence clearly indicates the Veteran had functional limitations of the left knee due to chronic pain, painful movement, and moderate flare-ups. The Board notes X-ray findings dated in May 2005 indicated "very minimal" spurring of the tibial spines, but otherwise normal findings. Tibia impairment is rated under DC 5262, with slight knee impairments rated as 10 percent disabling. See 38 C.F.R. § 4.71a, DC 5262. A higher rating under DC 5262 is not warranted unless there is evidence of a "moderate" knee disability. This is not supported by the evidence as the May 2005 x-ray descried the spurring as "very minimal." In addition, two separate ratings under DC 5262 and for functional loss due to pain would constitute impermissible pyramiding as they are both predicated on the overall function of the knee. Cf. Esteban, 6 Vet. App. at 262. Thus, the Veteran was entitled to a 10 percent rating prior to September 2, 2010, but no greater rating can be awarded for this time period for the Veteran's left knee. The only objectively confirmed findings during this time period was chronic pain, limited, painful motion (but not compensable under the applicable diagnostic codes), and "very minimal" tibial spurring. According to the September 2010 VA examination findings, the Veteran's left knee disability did exhibit objectively confirmed findings warranting a higher rating. At that time extension was limited from 20 to 25 degrees on repetition due to pain. Under DC 5261, a 30 percent rating is awarded for extension limited to 20 degrees, a 40 percent rating is awarded for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. The Veteran was awarded a 40 percent rating because his extension of the left knee was limited beyond 20 degrees after repetition, but the medical evidence does not support a finding of extension limited beyond 30 degrees. In fact, the 2010 VA examiner merely noted extension limited no worse than 25 degrees after repetition. Thus, a higher rating under DC 5261 is not warranted for the left knee. A higher rating or separate rating is also not warranted for the left knee from September 2, 2010. The 2010 VA examiner found limited flexion of the left knee no worse than 110 degrees, even after repetition, which is non-compensable under DC 5260. The examiner found no evidence of instability, meniscus abnormality, locking, or ankylosis of the left knee. Thus, no further ratings are warranted under DC 5256 (for ankylosis), 5257 (for instability), or 5258-5259 (for cartilage or meniscus abnormalities). In short, prior to September 2, 2010 the Veteran's left knee disability was manifested by chronic pain and tenderness, patella-femoral pain syndrome, tendonitis, and some x-ray evidence of "very minimal" tibial spurring, but with full extension and flexion no worse than limited to 90 degrees and no objective evidence of instability, meniscus abnormality, ligament abnormality, locking, subluxation, dislocation, or ankylosis. These manifestations do not warrant a rating greater than 10 percent or any separate ratings under any potentially applicable diagnostic code. From September 2, 2010, the Veteran's left knee disability was still manifested by chronic pain and tenderness, patella-femoral pain syndrome, and tendonitis, but with objective evidence of extension limited to no worse than 25 degrees and flexion no worse than 110 degrees. These manifestations do not warrant a rating greater than 40 percent or any separate ratings under any potentially applicable diagnostic code. Right Knee Analysis The medical evidence described in the factual background section above, in short, indicates that prior to September 2, 2010, the Veteran's right knee disability was manifested by chronic pain, with largely normal x-rays other than a May 2005 x-ray indicative of "very minimal" spurring of the tibial spines, patellar pain and tenderness, full extension, flexion limited no worse than 90 degrees, and MRI findings confirming a "small" ligament tear causing mild instability, a "small" meniscal cyst with "small" effusion, but no objective evidence of locking, giving way, deformity, dislocations, subluxation, or weakness. From September 2, 2010, medical evidence demonstrates a worsening of range of motion, to include extension limited no worse than 40 degrees on repetition, and flexion limited to no worse than 100 degrees on repetition. Prior to September 2, 2010, the Veteran was awarded a 10 percent rating for mild instability under DC 5257, and a 10 percent rating for patellar tendonitis with chronic pain and functional loss under DC 5003-5024. From September 2, 2010, the Veteran's 10 percent rating for patellar tendonitis with chronic pain and functional loss was increased to 50 percent under DC 5024-5261 based on limited extension. The Board finds no basis to award a rating greater than 10 percent under DC 5257, for instability at any time. A higher rating is warranted where instability is "moderate" or "severe." In this case, the Veteran's instability is consistently described as "mild" due to a "small" ligament tear throughout the appellate time frame. The 2005 and 2006 MRI reports and opinions by the Veteran's VA physicians describe the findings as a small radial tear at the junction of the posterior horn. The August 2006 and September 2010 VA examinations both note right knee instability due to the small tear. In August 2006, the examiner described the instability as "slight" and the September 2010 examiner described instability as "mild." There is no lay or medical evidence of record which shows that the Veteran's right knee instability more nearly approximates a moderate or severe condition. For these reasons, an increase under DC 5257 for any time period during the appellate time frame is not warranted. Prior to September 2, 2010, the Veteran was separately awarded a 10 percent rating for patellar tendonitis with chronic pain and functional loss. Similar to the left knee, the Veteran's right knee range of motion findings were not compensable under DC 5260 (flexion) or DC 5261 (extension). The Veteran was diagnosed with tendonitis, but other than "very minimal" spurring of the tibia spine, there is no x-ray confirmation of arthritis or any other abnormality. Thus, a compensable rating under DC 5003 is not warranted. Similar to the left knee, the Veteran's initial 10 percent rating for the right knee was awarded mainly in consideration of the Veteran's complaints of chronic pain and functional loss. That is, in accordance with 38 C.F.R. §§ 4.40, 4.45, functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint was considered. Although the Veteran's right knee disability did not meet the schedular criteria of a compensable rating prior to September 2, 2010, the medical evidence clearly indicates the Veteran had functional limitations of the left knee due to chronic pain, painful movement, and moderate flare-ups. Again, the Board notes X-ray findings dated in May 2005 indicated "very minimal" spurring of the tibial spines, but otherwise normal findings. The Board has considered the right knee tibia impairment under DC 5262 and, again, notes that a higher rating under DC 5262 is not warranted unless there is evidence of a "moderate" knee disability. This is not supported by the evidence as the May 2005 x-ray descried the spurring as "very minimal." In addition, as noted, two separate ratings under DC 5262 and for functional loss due to pain would constitute impermissible pyramiding as they are both predicated on the overall function of the knee. Cf. Esteban, 6 Vet. App. at 262. Thus, in addition to the 10 percent rating for instability of the right knee, the Veteran was also entitled to a separate 10 percent rating prior to September 2, 2010 for tendonitis with chronic pain and functional loss. No greater rating can be awarded for this time period for the Veteran's right knee under those diagnostic codes. At the September 2, 2010 VA examination, the Veteran's right knee range of motion, for the first time, demonstrated compensable limited extension, limited to 35 to 40 degrees on repetition. Flexion, limited at 100 degrees on repetition, is not compensable under DC 5260. The Veteran was awarded an increased rating of 50 percent, effective September 2, 2010, under DC 5261 for limited extension. This is the highest rating available under DC 5261. Thus, a higher rating under this diagnostic code is not possible. For reasons stated above, no higher ratings are available under DCs 5003-5024 (tendonitis), 5257 (instability), 5260 (limited flexion), or 5261 (limited extension). Despite the May 2005 notation of "very minimal" tibial spurring, the Board finds a separate rating under DC 5262 (for impairment of the tibia and fibula) would constitute impermissible pyramiding because the criteria is based on the over function of the knee disability, which is the basis of the Veteran's current ratings. DC 5262 would also not provide a higher rating here because the spurring was described as "very minimal," which is not consistent with a finding of a "moderate" or "marked" disability. The Board also finds that DC 5256 (for ankylosis of the knee) inapplicable here because the medical evidence does not support a finding of ankylosis at any time. The Board has also considered whether additional separate ratings or increased ratings are warranted under other disability ratings. To that end, the Board specifically notes the 2005 and 2006 MRI reports, which indicate that in addition to a ligament tear, the Veteran's right knee is manifested by a meniscal cyst with small effusion. In August 2006, the VA examiner noted the meniscus abnormality (cyst) with effusion, but also found no objective evidence of dislocation or locking. In September 2010, the VA examiner once again noted the meniscus abnormality (cyst) with effusion. Thus, throughout the entire appellate time frame, the Veteran's right knee disability, in addition to being manifested by instability and chronic pain with limited motion, was also manifested by a meniscus abnormality with effusion. Under DC 5258, a 20 percent rating is warranted for semilunar dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. Although no medical professional has confirmed "locking," the Veteran's right knee disability has been described as including a meniscal cyst with effusion with pain. Resolving all reasonable doubt in favor of the Veteran, a separate 20 percent rating, but no higher, is warranted for the Veteran's right knee meniscal cyst with effusion for the entire appellate time frame. DC 5258 does not provide for a rating greater than 20 percent. The Board finds DC 5259 inapplicable here because the Veteran has never had surgical removal of his semilunar cartilage. Cf. 38 C.F.R. § 4.71a, DC 5159. The Board finds no further diagnostic codes that would provide for a higher rating or additional separate rating. Additionally, the Board notes that from September 2, 2010, the Veteran's combined disability rating for his right knee is currently 60 percent. Any additional increased or separate rating from September 2, 2010 would violate the Amputation Rule and is thus prohibited by law. See 38 C.F.R. § 4.68. In short, the Board finds the evidence supports the ratings currently assigned for the right knee, but no higher. In addition, the Board finds the medical evidence supports an additional, separate 20 percent rating for meniscal cyst with effusion under DC 5258, but no higher, for the entire appellate time frame. The manifestations do not support any additional increase or separate ratings and, further, from September 2, 2010, any additional increase in combined rating of the right knee is prohibited by law. See 38 C.F.R. § 4.68, Amputation Rule. Extraschedular Considerations The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the evidence shows that the manifestations of the Veteran's bilateral knee disabilities at all times are contemplated by the schedular criteria. Therefore, referral of this claim for extra-schedular consideration is not required. TDIU The Board notes the U.S. Court of Appeals for Veterans Claims (CAVC or the "Court") recently held that a claim seeking a total disability rating based on individual unemployability (TDIU) is inferred in increased rating claims where the Veteran claims his disability affects his employability. 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) 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). The Federal Circuit has recently held that TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has not claimed his bilateral knee disabilities render him unemployable. The medical evidence notes mild to moderate occupational restrictions due to his knees. (See, e.g. August 2006 and September 2010 VA examination reports). The records also indicate the Veteran is not currently employed and has undergone vocational rehabilitation at VA facilities. This seems predicated mainly on other unrelated conditions. In any case, no medical professional has indicated the Veteran's current unemployment is due to his bilateral knee disabilities. In fact, there is evidence to the contrary. Hence further consideration of TDIU is not warranted. ORDER Entitlement to an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 40 percent, from September 2, 2010, for left knee patellar tendonitis is denied. Entitlement to an initial rating greater than 10 percent, prior to September 2, 2010, and a rating greater than 50 percent, from September 2, 2010, for right knee patellar tendonitis is denied. Entitlement to an initial rating greater than 10 percent for right knee instability is denied. Entitlement to an initial separate 20 percent rating for right knee meniscal cyst with joint effusion, effective March 29, 2005, is granted subject to the laws and regulations governing monetary awards. ____________________________________________ A.J. TURNIPSEED Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs