Citation Nr: 1337595 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 05-02 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee, on a schedular or extraschedular basis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active military service from February 1981 to May 1988. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied a rating in excess of 10 percent for left knee disability. In June 2005, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing has been associated with the claims file. In July 2007, she testified before the undersigned during a video conference Board hearing. In February 2008 correspondence, the Board offered the Veteran another opportunity to testify at a Board hearing because a written transcript of her July 2007 hearing was not produced. However, no response was received from the Veteran. This matter was previously before the Board in May 2008, January 2010, and May 2011 when it was remanded for further development. During the course of the remands, in April 2012, the Veteran was awarded an additional 10 percent rating for left knee limitation of flexion, effective in November 2004. In a July 2012 decision and remand, the Board found that the criteria were met for a 10 percent rating for a left knee disability with limitation of flexion for the period prior to November 10, 2004, but that no increase was warranted for that disorder after such date. At the same time, the Board remanded for further development claims for service connection for a right knee disorder, for a psychiatric disorder, for a TDIU, and for a rating in excess of 10 percent for osteoarthritis of the left knee with instability (status post arthroscopic surgery, patellar pain syndrome). On remand, in an October 2012 rating decision, the RO granted service connection for a dysthymic disorder and for a right knee disability. Those issues are no longer on appeal before the Board. In May 2013, the Board requested an expert medical opinion from an orthopedist at the Veterans Health Administration (VHA) regarding the Veteran's claim for a higher rating for her left knee disability remaining on appeal. In June 2013, a Chief of a VA orthopedic surgery department submitted a VHA opinion, which has been associated with the claims files. In November 2013 the Board received a statement from the Veteran dated the month before related to her right knee disorder. In October 2012, the RO had granted service connection for a right knee disability and awarded a 10 percent disability rating, effective September 11, 2009. The Veteran's October 2013 statement is a Notice of Disagreement to the RO's rating action and is not related to this appeal before the Board. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that when an appellant files a timely notice of disagreement (NOD) and no statement of the case (SOC) has been issued, the Board should remand, rather than refer, the issue(s) with which the appellant is in disagreement to the RO for the issuance of an SOC. As the October 2013 statement from the Veteran is a timely NOD to the initial rating and the effective date for the grant of service connection, these matters will be remanded for the issuance of an SOC. 38 C.F.R. §§ 20.201, 20.302(a) (2013). The claim of entitlement to TDIU is also 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. Since the December 2002 claim for increase, the evidence of record shows that the Veteran's left knee disability was manifested by moderate to severe recurrent subluxation or lateral instability and osteoarthritis. 2. During the pendency of the December 2002 claim for increase, the Veteran's osteoarthritis of the left knee has been manifested by intermittent locking, pain and effusion the functional equivalent of dislocated semilunar cartilage. 3. During the pendency of the appeal, the Veteran's osteoarthritis of the left knee was also manifested by moderate impairment of the left tibia and fibula, manifested by pain and limitation of flexion and pain on extension of the left knee. CONCLUSIONS OF LAW 1. The criteria for a 30 percent schedular rating, but no higher, for osteoarthritis of the left knee with subluxation or instability have been met. U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for a separate 20 percent schedular rating, but no higher, for osteoarthritis of the left knee with dislocated semilunar cartilage have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5258 (2013). 3. The criteria for a 20 percent rating, but no higher, for osteoarthritis of the left knee disability with impairment of the left tibia and fibula have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in letters from the RO dated in January 2003, February 2010 and August 2012. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing her claims, and identified the Veteran's duties in obtaining information and evidence to substantiate her claims. Thereafter, a supplemental statement of the case was issued in November 2012. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the February 2010 and August 2012 correspondence. With regard to the additional notice requirements for increased rating claims, it is acknowledged that the VCAA letters sent to the Veteran may not appear to fully satisfy the specifics of the original Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which required VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence of how the disability affected the Veteran's employment. To the extent proper notice of these changes was not provided, the Board finds that the Veteran in this case suffered no prejudice because the United States Court of Appeals for the Federal Circuit recently vacated the Court's previous decision in Vazquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). There is no dispute in this case that the Veteran has received generic notice of what is needed to satisfy her increased rating claim for the left knee. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues decided on appeal have been met. The duty to assist also has been fulfilled as medical records relevant to this matter have been requested or obtained and the Veteran was provided with VA examinations, review by a VHA medical expert, and an opportunity to appear before hearings at the RO and before the undersigned. The Board finds there has been substantial compliance with its past remands. Thus, the Board finds that the available medical evidence is sufficient for an adequate determination. Therefore, the Board finds that there has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Increased Ratings - Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 1 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2013). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398,405 (1995). As a layperson the Veteran is only competent to report observable symptoms-not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2013). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2013). Factual Background Historically, the Veteran manifested left knee pain in service. She underwent an arthroscopy, chondromalacia of the patella was noted, and there was surgical excision of material at the patella and excision of a retinacular band or synovial fold across a meniscus, but each meniscus was intact. Service connection for a left knee disability was granted in a July 1995 rating decision, with a 10 percent disability rating awarded, effective March 27, 1995. The Veteran filed this current claim for increase in December 2002. During the course of this appeal, in April 2012, the Veteran was granted a separate 10 percent rating for a left knee condition with limitation of flexion, later made effective as of December 6, 2002. As noted in the Introduction, that separate rating was the subject of the Board's July 2012 decision and is not before the Board during consideration of this appeal. The Veteran's service-connected left knee disability, characterized as osteoarthritis, left knee (arthroscopic surgery patella pain syndrome left knee) has been evaluated as 10 percent disabling under Diagnostic Code (DC) 5257 since March 1995. That rating under DC 5257 was in effect when the Veteran submitted her current claim for an increased rating in December 2002. Initially, the Board notes that left knee disability evaluated under DC 5257 has been characterized as "osteoarthritis, left knee." However, the rating criteria which provide for evaluation under DC 5257 specify that evaluation is based on subluxation or instability. The characterization of the disability rated in this case under DC 5257 as "osteoarthritis" does not change the rating criteria of Diagnostic Codes 5257, 5003, or 5260. Thus, if the Veteran has both instability and painful flexion of the left knee due to her arthritis, she is entitled to a separate rating under both DC 5257 and DC 5003 or DC 5260, regardless of the characterization (name) assigned by the RO to the disability rated under DC 5257. With respect to disabilities specific to the knee, Diagnostic Codes 5256 through 5263 set forth the relevant rating criteria. The Veteran is entitled to an appropriate rating for each of the knee disabilities present; the number of diagnostic codes which may be applicable is determined by the symptoms and findings present. DC 5257 authorizes a 10 percent rating for "slight" knee impairment due to recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate knee impairment. A 30 percent rating is warranted for severe knee impairment due to recurrent subluxation or lateral instability. Under DC 5256, for ankylosis of the knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. For ankylosis of the knee in flexion between 10 and 20 degrees, a 40 percent rating is warranted. Flexion between 20 degrees and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. DC 5258 provides for a maximum 20 percent rating for cartilage, semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint, while DC 5259 allows a maximum of 10 percent for cartilage, semilunar, removal of, symptomatic. Degenerative arthritis of the knee established by X-ray findings is evaluated under DC 5003, which in turn is evaluated based on the limitation of motion under the appropriate diagnostic code for the specific joint involved, or in this case, DC 5260 for limitation of leg flexion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Code 5003. The knees are considered major joints. 38 C.F.R. § 4.45. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. VA standards describe normal range of motion of the knee as from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating may be assigned for limitation of flexion of the leg to 45 degrees, a 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees, and a 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, a 10 percent evaluation for extension limited to 10 degrees, and higher rating for additional limitation. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-04. Under DC 5262, a 10 percent rating is available for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is available for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is for assignment for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Under DC 5263, only a 10 percent rating is available for genu recurvatum. The Board also must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Facts and analysis The Veteran underwent a VA examination in January 2003. She reported pain in her knee, which increased when she stood up. She did not use any crutch, brace, or cane. There was no dislocation or subluxation noted during the examination, although the examiner did not specify whether the Veteran reported instability of the left knee. There was a one-inch scar on the lateral and upper part of the left knee through which an instrument must have been placed. The scar was well healed with no keloid, no loss of subcutaneous tissue, and no ulceration. The anterior and posterior cruciate ligaments were intact. The medial and lateral ligaments were intact. MacMurray's test was negative. The examiner noted that "[r]epeated movement does not change much and there is not any more pain than usual dull aching." The examiner diagnosed obesity and posttraumatic arthritis. A January 2003 X-ray study of the left knee showed minimal narrowing to the medial femoral tibial joint compartment consistent with osteoarthritis. There were no signs of fractures or dislocations. A November 2003 VA record reflected that the Veteran complained that she continued to have pain in the left leg that sometimes felt worse than at other times. The pain was usually described as a dull ache with numbness, but the Veteran reported that, after she performed standing or working, the pain increased to severe throbbing, shooting, stabbing, and tight sensations. There was no history of falling, ambulatory aid, or bed rest. Her gait, however, was noted to be weak. The Veteran reported that she "can't sleep at night or concentrate at school because my leg hurts all the time." The Veteran was diagnosed with left leg sciatica. A September 2004 private medical record from Dr. G.W. reflected that the Veteran reported that around 1:30 p.m. that day she placed some bread trays on the ground, turned around, and as she did so, lost her balance and fell. She stated that she hit both knees on the concrete, with the right knee pain worse than the left knee pain. Diagnoses included a contusion to the left knee. November and December 2004 private clinical records reflected that the Veteran had fallen on her knees while at work. It was noted that her right knee was worse than her left. It was further noted that she had moderate degenerative changes in both knees. The impression was exacerbation of pre-existing degenerative arthritis in the knees. A report from Dr. G.W. from treatment in November 2004 reflected that the Veteran's left knee had recovered fully "so the swelling, which is evidence in the knee, is probably the knee being overstressed from her favoring the right knee." She was given a prescription for pain and inflammation and for sleeve-type knee braces. Diagnosis was bilateral knee contusion with pain and effusion. December 2004 records reflected that she had full extension, did not walk with a limp, and had good or full flexion. It was also noted that most of the time her knees did well, but if she was standing for long periods of time they bothered her. It was further noted that she might need to have her work modified so that she was not required to do more than sedentary-type work instead of prolonged standing or walking. The records indicated that the Veteran reported that she did not feel that she could return to her regular job as a school cafeteria cook. A January 2005 functional capacity evaluation report reflected that the Veteran was observed standing for 71 minutes, during which time she walked 3/4 mile, climbed/descended 72 steps, pushed, pulled, carried and lifted without stopping to sit. No gait deviation was noted during testing. The report indicated that she currently met the requirements for a school cafeteria cook as she described them. The report reflected that a recent X-ray study revealed moderate degenerative changes in both knees. In January 2005, Dr. M.D. informed the Veteran that she had moderate arthritis in her knees and that she should limit her standing and walking. In a January 2005 statement, the Veteran stated that she now wore braces on both knees, was unable to do any prolonged standing or walking, and was unable to do any knee bending. April 2005 correspondence from Dr. G.L. reflected that the Veteran presented with a history of a work injury in September 2004 when she tripped and fell on both knees. She subsequently developed bilateral knee pain. Anterior and posterior drawer tests were negative, there was no medial or lateral collateral ligament laxity noted, and McMurray's test was negative. Impression included bilateral chondromalacia patella and bilateral knee pre-patellar bursitis. April, June, and August 2005 correspondence from Dr. G.L. reflected that the Veteran had continued complaints of knee pain, notably with prolonged standing. The Veteran testified at the June 2005 DRO hearing about her in-service injury to her knees and surgery on her left knee before discharge. She said that she was told during her Medical Board that her left leg had muscle loss and was shorter than her right leg. She also testified about her left knee giving out in September 2004 while she was working in a school cafeteria; however, she also stated that she "couldn't tell you exactly what happened." She noted that her legs had been hurting her earlier in the day and her legs had "just got really stiff." She also noted that the bottom of her legs swelled a lot. She testified as follows: "I was going outside, and I reached for the car, and the next thing I know, they were picking me up off the ground." She also testified that she wore knee braces when she knew that she would be standing up for a long time. She testified that she had been able to work for nine and one-half years standing in a serving line at the school cafeteria by wearing knee braces and being able to sit down occasionally so that her legs would not swell up "so bad." She further testified that she took medication every day and wore knee braces if she knew she was going to be on her feet for long periods of time: "I know I have arthritis in them (knees), but it (use of braces) gives me stability." See DRO hearing transcript at pp. 2, 8, 10, 12. November 2005 VA records reflected that the Veteran took glucosamine and Tylenol for bilateral knee pain. She sought a private doctor (Dr. G.L.) for worker's compensation. She reported that she had returned to work for a week in October, but had to stop due to increased pain. A December 2005 private medical record reflected that the Veteran reported knee pain, left worse than right. She noted that she only occasionally wore her knee braces because she did not think that they helped her, and she would occasionally take Aleve. The examiner opined that she had degenerative arthritis of the knees, which she should be able to treat with activity modifications and weight loss. March 2006 correspondence from Dr. G.L. reflected that the Veteran had been placed on work restrictions. She was placed on Celebrex and told to continue Glucosamine. An April 2006 private medical record reflected that the Veteran was working towards becoming a teacher by taking colleges classes. The examiner stated that the Veteran should be able to perform employment as a teacher. A November 2006 VA medical record noted that the Veteran was taking Celebrex daily. February 2007 correspondence from Dr. G.L. reflected that the Veteran continued to note bilateral knee pain, especially with prolonged standing. The Veteran states that her worker's compensation payments terminated on April 4, 2007; this statement is consistent with the evidence of record. Private correspondence from Dr. G.L. in July 2008 indicated that the Veteran should resume Celebrex and the use of Lidocaine patches. The physician also encouraged long-term consideration of Glucosamine and Chondroitin. An August 2008 private medical record noted degenerative arthritis in both knees. A slight varus deformity was also noted for both knees. While she was currently taking Celebrex, the physician thought if that was not effective then she might need a cortisone shot or knee replacement surgery. An X-ray study noted osteophytes medially on both knees and in the patellofemoral joint, both worse on the left than on the right. Private correspondence from Dr. D.J. dated in February 2009 indicated that the Veteran had isolated medial compartment arthritic disease with some mild involvement of the patellofemoral areas bilaterally. February 2009 private clinical records reflected that the Veteran rated her pain as a 4 on a scale of 0 to 10 (with 10 being the worst pain imaginable.) She reported that her pain was aching, tender, and burning, and it frequently awakened her from sleep and prevented her from sleeping. She reported that her symptoms were aggravated by standing, walking, exercising, stooping, and bending. According to a March 2009 VA medical record the Veteran took a Glucosamine-Chondronitin cap daily, and used a Lidoderm patch mostly four times a week, for her bilateral knee pain. An April 2009 private MRI scan of the Veteran's left knee showed intrasubstance tearing of the far medial and posterior horn of the medial meniscus with slight medial meniscal extrusion without discernable articular tear; small joint effusion; and tricompartmental osteophyte formation with loss of articular cartilage involving the medial joint compartment and the medial facet of the patella. A May 2009 private medical record revealed that the Veteran was counseled regarding left knee implant surgery. The physician wrote that based on her activity level and function, surgery was the most appropriate treatment. In June 2009, the Veteran had a Synvisc-One injection in the left knee. The Veteran underwent a VA examination in July 2009. The Veteran reported locking episodes one to two times a year. There was objective evidence of pain with active motion on the left side. Findings included crepitus, guarding of movement, clicks or snaps and grinding, and subpatellar tenderness. There was no joint ankylosis, and no loss of function associated with repetitive motion. Her left knee disability resulted in decreased mobility. It had a severe effect on chores, shopping, exercise, and recreation, and prevented sports participation. An August 2009 statement from J.R., an elementary school teacher, reflected that she had witnessed the Veteran's "dwindling" knee health and inability to use the ladies room. She reported seeing the Veteran take medication in the morning and afternoon. A September 2009 statement from the Veteran's daughter, L.K., reflected that the Veteran was once a "very active and vital woman" but now had trouble with tying her shoes and walking. She reported that she could hear her mother's knees popping. A September 2009 statement signed by two co-workers (A. K and J. T.) reflected that in the past three years, the Veteran had continual problems with her knees, which worsened as the work day progressed. A September 2009 statement from M.H, a life-long friend and service comrade, reflected that in December 2008 he attended the Veteran's college graduation and saw her "almost" fall climbing up the steps. He also noted her positive attitude and good health had completely disappeared. A September 2009 private record reflected that the Veteran reported that her pain was a 1 to 2 in the morning; however, it increased up to an 8 out of 10 within three to four hours. The Veteran's weight was 215 pounds and her height was 5 feet 3 inches. Upon physical examination, it was noted that she had a mild antalic gait which favored her left knee with a decreased stance phase on her left knee versus her right. The clinical plan was for the Veteran to use an unloading brace for medial unloading and to lose weight. July 2010 correspondence from Dr. G.L. reflected that the Veteran had begun water therapy in May. He noted that she had obvious degenerative changes in both knees and thigh atrophy, left greater than right. He encouraged her to begin quad strengthening exercises after her water therapy. In addition, he prescribed two single-point canes to assist with gait and to decrease the pressure on the knees as she ambulated. A July 2010 VA examination report reflected that the Veteran reported giving way, instability, pain, stiffness, weakness, and locking several times a week. Her gait was noted to be antalgic. Upon clinical examination, she had crepitus, pain at rest, abnormal motion, guarding of movement, and clicks or snaps, with no grinding. Her leg lengths were equal at 37.5 inches. A September 2010 addendum to the VA examination stated that there were no objective findings of instability of the left knee. An October 2010 VA medical record noted the Veteran's complaint of chronic bilateral knee pain which she said was worse with prolonged standing and walking. It was also noted that she was taking Celebrex but thought that it was not working. As to any effect on her quality of life, the record disclosed that the Veteran did everything but for a lot of walking. A June 2011 statement from D.W. reflected, among other observations, that the Veteran went through several rounds of physical therapy since her accident, had difficulty getting around, had to take a different position at work, and used a cane. June 2011 correspondence from Dr. G.L. indicated that the Veteran had stopped water therapy in approximately January 2011 and that VA had changed her Celebrex to another drug. Dr. G.L. encouraged the Veteran to purse the water therapy and changed her medication back to Celebrex. July 2011 private medical records reflected that the Veteran reported that Synvisc helped for about 3-4 weeks and the unloader brace had helped significantly. She also reported that water exercises helped, but she continued to have stiffness in the morning, and pain medially along both knees. Records also reflected that her left knee demonstrated varus alignment. X-ray studies reflected slight osteophyte formation, moderate loss of articular cartilage, moderate osteopenia degenerative changes, varus knee alignment, no tilt, and no subluxation. An August 2011 record reflected that the Veteran's employer would ensure that she was not required to exceed the physical parameters outlined by Dr. G.L. in June 2011, as well as by Dr. J. in July 2011. She would not be required to kneel, squat, or restrain special education children. She would not be required to work with previously identified combative children, or in an environment that required rapid and uncontrolled stresses on knees. A January 2012 VA medical record indicated that the Veteran's private orthopedist wanted to do a knee replacement for both knees. In July 2012, the Board asked that a VA examiner discuss the MRI examinations of the Veteran's left knee. The Board specifically asked, in paragraph 5 of the July 2012 Remand, that the examiner "describe the functional effect of the intrasubstance tearing and meniscal extrusion, including whether it is the functional equivalent of dislocated semilunar cartilage." The Veteran underwent another VA examination in September 2012. The Veteran reported cortisone and Synvisc injections. Fluid had been drained from her knees. She also reported pain in both knees at all times, which increased with prolonged standing. She stated that her knees "crack" and "lock up" and swell. She said that she sat down a lot to prevent locking. She used one cane at work and wore braces on both knees. She occasionally used Lidoderm patches at night. The September 2012 VA examination report stated that the Veteran had functional loss and/or functional impairment of the knee and lower leg with repetitive use including: less movement than normal, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examination also noted tenderness or pain to palpation for joint line or soft tissues of the left knee. Left knee anterior and posterior stability as well as medial-lateral stability was described as normal. The examiner stated that there was no evidence or history of recurrent patellar subluxation/dislocation. There was crepitus of both knees with range of motion. It was noted that the Veteran constantly used a brace and a cane. Also four well-healed surgical scars to the left knee were noted that were not painful or unstable or greater than 39 sq. cm. The examiner said that X-ray studies documented degenerative arthritis, but not patellar subluxation. The examiner assigned three separate diagnoses: osteoarthritis of the left knee; left knee condition with limitation of motion; and degenerative joint disease/osteoarthritis. The VA examiner did not discuss the clinical significance of the April 2009 MRI scan results, or address the approximately 200 pages of reprinted images and 2009 CD-ROM from a MRI scan of both knees undertaken in September 2002. The VA examiner was requested subsequently, on two separate occasions, to address additional information requested in the Board's July 2012 remand. In October 2012, the VA examiner stated that the policy of her VAMC prevented her from examining a CD containing MRI scans. The examiner further explained that she was not able to interpret other MRI scans found in the record, as she was not an orthopedic surgeon. The examiner opined that the functional effects of intrasubstance tearing and meniscal extrusion could not be determined without resorting to mere speculation. In November 2012, the VA examiner who provided the September 2012 report explained her rationale for stating that an opinion about functional effects of the findings noted on the April 2009 MRI results would require speculation. She stated that the symptoms of the service-connected left knee conditions (limitation of motion and osteoarthritis) present with similar symptoms and/or functional impairments as "intrasubstance tearing of the far medial and posterior horn of the medial meniscus with slight medial meniscal extrusion without discernible articular tear." She stated that the findings of the September 2012 examination were consistent with osteoarthritis, limitation of motion, and meniscal injuries. Therefore, she felt unable to specifically state which symptoms and/or functional impairments are related to each diagnosis, as the symptoms and/or functional impairments of all were essentially the same. In May 2013, the Board requested a VHA opinion from an orthopedist. In June 2013, Dr. H.M.B., the chief of orthopedic surgery at a VA facility, provided VHA opinion. After a review of the claims file, he stated that it was likely that the medial meniscal extrusion shown on the April 2009 MRI scan resulted in a functional effect or deficit. He explained that the effect would be a sense of instability or subluxing of the knee and limited motion. Giving way could also occur. The Veteran's complaints suggested that a functional effect was present, which Dr. B. thought was equivalent to a dislocated semilunar cartilage and included locking, pain, and effusion. Dr. B. also concluded that moderate to severe subluxation or lateral instability of the left knee was present; that there was moderate impairment of the left tibia and fibula; and that there were residuals demonstrated of the in-service excision of material at the patella and excision of a retinacular band including osteoarthritic changes. Dr. B. believed the proper diagnosis of the Veteran's left knee disorders was osteoarthritis of the left knee. He also noted that images of the Veteran's left knee in MRI scans and X-ray studies were compatible and consistent with her complaints of knee pain, swelling, and limited motion. Ratings under DCs 5257 to 5262 As noted above, the Veteran has been rated continuously under DC 5257 for knee impairment manifested by recurrent subluxation or lateral instability. During the course of this appeal, the Veteran has consistently complained of instability notwithstanding the contrary findings of the inadequate September 2012 VA examination. The VHA medical expert who provided the June 2013 report after reviewing the entire claims file, including MRI scans and X-ray studies, opined that the Veteran's osteoarthritis of the left knee was manifested by moderate to severe subluxation or lateral instability. DC 5257 provides a 20 percent rating for moderate subluxation or instability and a 30 percent rating for severe subluxation or instability. As noted above, when there is a question as to which of two ratings to apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Granting the Veteran the benefit of the doubt, the Board finds that the higher, or 30 percent, rating under DC 5257 is appropriate in this case. The Board notes that there is evidence, reviewed by the VHA medical expert, which shows that the Veteran's osteoarthritis of the left knee is also manifested by locking of the knee, pain, and effusion. The VHA expert opined that the functional effect of the intrasubstance tearing of the far medial and posterior horn of the medial meniscus, slight medial meniscal extrusion, without discernible articular tear, which was shown on a 2009 MRI scan, would be a sense of instability or subluxing of the knee and limited motion. The VHA report went on to note that the functional effect at issue was the equivalent of dislocated semilunar cartilage. Therefore, the Board finds that a separate 20 percent rating under DC 5258 is appropriate in this case. Further, the Board finds the evidence also shows impairment of the left tibia and fibula. The VHA expert noted in his June 2013 report that there was moderate impairment of the left tibia and fibula in the lower half of the knee joint. Under the provisions of DC 5262, a moderate knee or ankle disability due to malunion of the tibia and fibula merits a 20 percent disability rating. Therefore, the current evidence supports a 20 percent disability rating for osteoarthritis of the left knee with impairment of the tibia and fibula. The examiner did not, however, opine as to the onset of tibia and fibula impairment. The Board must consider whether application of the DeLuca factors and the provisions of 38 C.F.R. §§ 4.40 and 4.45 support a rating in excess of 20 percent for limitation of use of the left knee or left ankle or the grant of any higher rating for the Veteran's left knee disability based on pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's pain is adequately rated under DC 5262, since all other symptoms of left knee disability are rated under DC 5257 and 5258, and DC 5258 also encompasses pain. The Board notes that, currently, a 10 percent evaluation is in effect for limitation of flexion under DC 5260. The Veteran cannot be separately rated under DC 5262 and for his loss of flexion under DC 5260, as DC 5262 encompasses pain and loss of range of motion. To award the Veteran a rating under DC 5262 and DC 5260 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. In cases of overlap, pyramiding or compensating the same signs and symptoms as part of different disabilities must be avoided. The agency of original jurisdiction (AOJ) will be responsible to determine the effective date of the rating under DC 5262 and addressing the provisions of 38 C.F.R. § 4.14. As the 2013 medical opinion requires assignment of a 20 percent rating under DC 5262, the rating under DC 5262 is more beneficial to the Veteran than the rating for limitation of flexion under DC 5260. The Board notes that the AOJ will be determining the effective dates for the awards of increased ratings discussed above, both in light of regulations governing staged ratings combined rating for disabilities of an extremity. See Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 C.F.R. § 4.68 (amputation of the leg below the middle of the thigh warrants a 60 percent rating under DC 5164). The Board next will consider whether higher or separate ratings might be assigned for the service-connected left knee disorder under other diagnostic codes. However, there is no evidence of ankylosis of the left knee in any examination or medical treatment of record to warrant a rating under DC 5256. Nor is there evidence of the removal of semilunar cartilage to warrant a rating under DC 5259 or objectively demonstrated genu recurvatum to warrant a separate compensable rating under DC 5263. The Veteran is competent to report her symptoms relating to left knee pain. The Board is aware of the Veteran's assertions as to the severity of her left knee pain and recalls her difficulties in mobility when she appeared at her Board hearing. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Considering the Veteran's credible statements as to the symptoms of her disability, the objective evidence before the Board has also shown that certain manifestations satisfied the diagnostic criteria for higher or separate ratings for a left knee disability, as explained herein. To the extent that the Veteran has asserted that she warrants a rating in excess of those now awarded for her osteoarthritis of the left knee, the Board finds that the preponderance of the evidence during the appeal period, as explained herein, supports only a 30 percent rating for subluxation or instability, a 20 percent rating for dislocated semilunar cartilage, and a 20 percent rating for impairment of the tibia and fibula. Indeed, the Board notes that she has been awarded the maximum schedular ratings available under the provisions of DC 5257 for instability and DC 5258 for dislocated semilunar cartilage, and that the combined ratings for all left knee disabilities may not exceed 60 percent. The Board is responsible for weighing all of the evidence and finds that the preponderance of the evidence is otherwise against higher and further separate ratings for the left knee disability. Any reasonable doubt, such as the degree of severity of the Veteran's left knee subluxation or instability, has been resolved in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consideration of extraschedular rating The Board has considered whether there is any evidence which warrants consideration of an extraschedular evaluation in excess of the assigned ratings for left knee disability. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board must 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 available schedular evaluations, or any specific evaluation, for the service-connected left knee disabilities is not adequate. With consideration of the fact that the Veteran is separately-rated for subluxation and instability under DC 5257, for locking under DC 5258, and other knee impairment, including range of motion and pain under DC 5262, the established rating criteria reasonably describe the Veteran's disability level and symptomatology due to left knee disability. There is no evidence of record that the Veteran has other symptoms which are clinically related to the service-connected left knee disability and which fall outside the rating criteria. The simple fact that the Veteran's disability does not provide the Veteran with a higher rating does not place her symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable. Based on the foregoing, further inquiry into extraschedular consideration is moot. See VAOPGCPREC 6-96, and Thun, supra. ORDER A 30 percent rating for osteoarthritis of the left knee with subluxation or lateral instability is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 20 percent rating, but no higher, for osteoarthritis of the left knee with dislocated semilunar cartilage is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 20 percent rating, but no more, for osteoarthritis of the left knee with impairment of the tibia and fibula is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Board notes that 38 C.F.R. § 4.16(b) permits the award of a total disability rating based on temporary (i.e., non-permanent) inability to follow a substantially gainful occupation. In this case, the Veteran returned to work, after a period during which she was unable to work, but became able to further her education, and then return to work at a different type of employment. The Veteran has requested a total disability based on actual unemployability for a period during which she was unemployed and, she asserts, unemployable, although she was eventually able to again become gainfully employed after completing a vocational rehabilitation program. The facts of record establish that the Veteran was unable to work for a period of time following knee injury in 2004. She apparently sought VA vocational rehabilitation benefits, was evaluated, awarded benefits, and undertook college coursework. The dates which show when the Veteran was forced to stop working, when she applied for rehabilitation benefits, when she was awarded rehabilitation benefits, and when she attended school, are not of record. These facts are required to determine whether there was a period of time during which the service-connected disabilities had a marked effect on her employment, and thus are required to determine whether the Veteran meets the criteria for extraschedular consideration during some portion of the pendency of the appeal. In VAOPGCPREC 5-2005, the General Counsel stated that VA's regulations plainly provide that TDIU ratings may be assigned for compensation purposes without regard to whether the total disability is permanent in nature, and that VA may assign a total rating based on individual unemployability (TDIU rating) based upon a veteran's temporary (i.e., non-permanent) inability to follow a substantially gainful occupation. However, not every period of inability to work will establish an inability to follow a substantially gainful occupation warranting a TDIU rating, because it may be possible to secure and retain employment and to earn significant income despite occasional periods of incapacity. VA must make determinations regarding ability or inability to follow a substantially gainful occupation on a case-by-case basis, taking into account such factors as the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran's employment history and current employment status, and the veteran's annual income from employment, if any. VAOPGCPREC 5-2005. Further factual development is required to discuss whether, in this case, the service-connected left knee disability resulted in total unemployability for a period of time, and how long this unemployability, if found, lasted. Clearly, the Veteran returned to school and then to work, but the dates when she was able to resume those activities are not of record. As noted in the Introduction, above, the Veteran is entitled to a SOC addressing the disagreement with the initial 10 percent rating assigned for right knee disability and the date of the grant of service connection for that disability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and her representative with an SOC regarding the claim of entitlement to an increased initial rating and an earlier effective date for right knee disability. They should be advised of the time period in which to perfect an appeal on the matters. If, but only if, the Veteran perfects a timely appeal, the claim for an increased initial evaluation for right knee disability and an earlier effective date for the grant of service connection should then be returned to the Board for further appellate consideration. 2. Obtain the Veteran's VA Vocational Rehabilitation folder. (a). If the application and folder for vocational rehabilitation benefits does not show when the Veteran became unable to work following her 2004 knee injury, ask the Veteran to provide records which document that date or afford her an opportunity to authorize VA to obtain those records from her employer. (b). If the vocational rehabilitation records does not show when the Veteran began attending college classes, ask the Veteran to provide that information, such as through a transcript. (c). Ask the Veteran, if the information is not shown by the records obtained on Remand, to provide information from her employer, from her Social Security Administration earnings records, from her tax information, or the like, that shows when she returned to work, and shows whether she worked full-time or part-time when she returned. If the Veteran returned to part-time work, she should provide any information that would show when she was able to return to work at a substantially gainful rate. 3. Then, determine whether there was any period during the pendency of this claim, which originated in 2002, during which the Veteran met the criteria for TDIU, even though she is currently working, and has been for several years. . 4. After the development directed has been completed, the claim for TDIU, including for a temporary period of unemployability, should be readjudicated. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC) which addresses actions taken since the issuance of the last SSOC. The Veteran and her accredited representative should be given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs