Citation Nr: 1338755 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-36 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for tendonitis of the left knee. 2. Entitlement to an initial disability rating in excess of 10 percent for tendonitis of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to June 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection and assigned noncompensable ratings for left and right knee tendonitis. In a September 2007 rating decision, the RO granted a 10 percent rating for each knee, effective March 21, 2006. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, this matter remains in appellate status. The Board remanded the claims for further evidentiary development in September 2011. In the June 2012 VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative incorrectly identified the issues on appeal as entitlement to a rating higher than 30 percent for sarcoidosis with pulmonary and renal involvement and entitlement to service connection for a heart condition, to include coronary artery disease, to include as secondary to service connected sarcoidosis with pulmonary and renal involvement. This appears to have been in error, as these issues have not been certified as on appeal and thus, they are not before the Board this time. In a December 2008 rating decision, the RO denied the Veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran did not appeal the denial of TDIU. However, the October 2012 Written Brief Presentation indicates that a new claim for a TDIU has been raised, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the claim for a TDIU was previously denied in December 2008 but not appealed, at a time concurrent with the claims currently on appeal, the Board does find it has appellate jurisdiction over the prior claim for a TDIU, even though a claim for a TDIU is ordinarily viewed as part and parcel of in increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU part and parcel of increased rating claim); but see also Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-rating claim). Specifically, when the claim was denied in December 2008, the Veteran had submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, wherein he attributed his inability to work to his service-connected bilateral knee disability. However, in raising the issue of a TDIU in the October 2012 Written Brief Presentation, the Veteran's representative attributed the inability to work to multiple disabilities, some of which are not service connected. See page 2 (requesting that TDIU be readjudicated with hypertension and its possible aggravation of diabetes, and pseudofolliculitis barbae). In other words, the Veteran's representative was not alleging that the knees were the sole basis of the Veteran's inability to obtain and sustain gainful employment. For these reasons, the Board finds that the claim for TDIU raised in the October 2012 document is not part of the current appeal. In addition, the issues of (1) entitlement to service connection for hypertension and (2) whether new and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis barbae, to include consideration of whether there was clear and unmistakable error in the October 2007 denial of the claim, have been raised by the record, see October 2012 Written Brief Presentation on page 2, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over the issues of (1) entitlement to a TDIU rating; (2) entitlement to service connection for hypertension; and (3) whether new and material evidence has been received to reopen the claim of entitlement to service connection for pseudofolliculitis barbae, to include consideration of whether there was clear and unmistakable error in the October 2007 denial of the claim, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The credible evidence establishes that the Veteran's left knee tendonitis is manifested by some reduction in range of motion with pain, arthritis, and slight instability. 2. The credible evidence establishes that the Veteran's right knee tendonitis is manifested by some reduction in range of motion with pain, arthritis, and slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limited motion of the Veteran's left knee tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024 (2013). 2. The criteria for a separate rating of 10 percent for instability of the Veteran's left knee tendonitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 3. The criteria for a rating in excess of 10 percent for limited motion of the Veteran's left knee tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024 (2013). 4. The criteria for a separate rating of 10 percent for instability of the Veteran's right knee tendonitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23,353-23,356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, in a March 2006 letter, issued prior to the rating decision on appeal, VA provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The increased rating claims arise from the initial awards of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see 38 C.F.R. § 3.159(b)(3)(i). Thus, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that has been associated with the claims file includes private treatment records, statements from the Veteran and his representative, and VA examination reports. The Board is also satisfied as to substantial compliance with its September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999 ), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The remand included obtaining the Veteran's recent private records. The Veteran was sent a letter in September 2011, asking him to provide a release form in order for VA to obtain additional private records and the opportunity to submit additional medical or other evidence, to which he did not respond. The remand also included scheduling the Veteran for another VA examination for his tendonitis of the left and right knee. The Veteran underwent a Disability Benefits Questionnaire examination (DBQ) in November 2011. Thereafter, the AOJ readjudicated his claims in the June 2012 Supplemental Statement of the Case (SSOC). Thus, there has been substantial compliance with the Board's prior remand directives, and no further remand to satisfy the duty to notify and assist is necessary. See Dyment, 13 Vet. App. at 146-47; Stegall, 11 Vet. App. at 268. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Legal Criteria The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2013). Other applicable, general policy considerations are: interpreting 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, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the Veteran has expressed dissatisfaction with the assignment of an initial ratings following the initial awards of service connection for those disabilities, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 119. The Veteran's bilateral knee tendonitis has been rated under Diagnostic Code (DC) 5024, for tenosynovitis. Under DC 5024, tenosynovitis is evaluated as degenerative arthritis under DC 5003. Degenerative arthritis when established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2013). In the absence of limitation of motion, a 20 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating disabilities listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides for evaluating limitation of the flexion of the leg. A noncompensable rating is provided where flexion is limited to 60 degrees, a 10 percent rating is assigned where flexion is limited to 45 degrees, a 20 percent rating is assigned when flexion is limited to 30 degrees, and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the leg is rated noncompensable at 5 degrees, 10 percent at 10 degrees, 20 percent at 15 degrees, 30 percent at 20 degrees, 40 percent at 30 degrees, and 50 percent at 45 degrees. 38 C.F.R. § 4.71a, DC 5261. See also 38 C.F.R. § 4.71, Plate II (2013), which reflects that normal flexion and extension of a knee is from 0 to 140 degrees. It is noted, "[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. The Board notes that the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his or her earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a Veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). The combined evaluation for the affected leg, however, cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that a higher rating is warranted for his service-connected tendonitis of the right and left knees. The Veteran's tendonitis is currently rated as 10 percent disabling, for each knee, based upon limitation of motion. Historically, service connection for tendonitis of the right knee and left knee was granted in a November 2006 rating decision, and a noncompensable rating was assigned for each. As previously noted, in an October 2007 rating decision, the RO assigned separate 10 percent ratings to the service-connected right knee tendonitis and left knee tendonitis. According to the October 2006 VA examination report, the diagnosis was tendonitis for both knees. Range of motion testing revealed flexion to 140 degrees bilaterally and extension to zero degrees bilaterally. The 2006 examiner also noted that the Veteran had pain on extremes. It was further noted that there was no fatigue, weakness or lack of endurance with repetitive motion, regarding both knees. The findings at that time included painful motion, but no edema, effusion, instability, weakness, or tenderness. Private treatment records also reveal a diagnosis of bilateral knee pain, probable DJD, in April 2008. The plan at that time included bilateral knee brace. The Veteran underwent another VA examination in January 2009. At that time the Veteran reported symptoms of pain, stiffness, weakness, giving way, and instability. He also reported experiencing flare-ups of increased pain, swelling, and stiffness every 2 to 3 weeks which lasted for hours and were severe in nature. The Veteran reported having a 30 percent (LOM) loss of motion in both knees during flare-ups. Assisted devices noted include cane and brace. Crepitation and subpatellar tenderness were also noted in both knees. There were no clicks, snaps, grinding, instability, or meniscus abnormality. Upon examination of the left knee, flexion was to 90 degrees and extension was to 0 degrees. Range of motion testing on the right knee revealed flexion to 100 degrees and extension to 0 degrees. The examiner further reported objective evidence of pain with active motion and following repetitive motion; but there was no additional limitation after three repetitions of range of motion. The diagnoses at that time included bilateral knee tendonitis and right patellar fracture, healed. A November 2011 VA DBQ examination report reflects some limited range of motion. Specifically, range of motion testing for the right knee revealed flexion to 95 degrees with pain beginning at 85 degrees and extension to at least 0 degrees. Left knee range of motion testing revealed flexion to 100 degrees with pain beginning at 90 degrees and extension to at least 0 degrees. Range of motion remained the same after repeated testing. The examiner also noted that the Veteran had swelling on the right and less movement than normal, weakened movement, excess fatigability, and pain on movement, bilaterally, which contributed to his functional loss or functional impairment. The Veteran also demonstrated tenderness or pain on palpation. Anterior and posterior stability tests were normal. However, the examiner indicated that the Veteran had 1+ instability bilaterally, when checking medial-lateral instability. Crepitus was also noted bilaterally. The Veteran's gait was reported to be antalgic and he was wearing a brace on both knees. The diagnosis regarding both knees at that time was degenerative joint disease (DJD) posterior horn medial meniscus degeneration with mild DJD (reactive subchondral changes per x-ray) with residual of moderate severity: pain, limited range of motion, and altered gait. Under DCs 5003 and 5024, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC's, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. The Board notes that effective of March 21, 2006, the Veteran's left and right knee tendonitis are each rated as 10 percent disabling. Ratings in excess of 10 percent for tendonitis of the left and right knees based upon limitation of motion are not warranted. In this case, during the entire appellate period, there has been no indication of incapacitating episodes, and no compensable limitation of motion has been demonstrated in either knee. According to the 2006 VA examination, the Veteran had full range of motion, but pain at the extremes. As reported in the 2009 and 2011 VA examination reports, the Veteran has limited motion of each knee with pain. Such limitation of motion, however, is noncompensable pursuant to Diagnostic Code 5260. As noted above, under Diagnostic Code 5003, when the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, as in this case, an initial rating of 10 percent is for application for a major joint such as the knee. As the knee is a major joint, the Board finds that this is sufficient for the separate compensable ratings of 10 percent assigned for each knee pursuant to the criteria of Diagnostic Code 5003. The Board notes that although the diagnoses include arthritis, the Veteran is not entitled to a rating in excess of 10 percent for either service-connected knee disability under DC 5003. A 20 percent rating under DC 5003 would require x-ray evidence of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. In this case, there is no evidence of incapacitating exacerbations due to the service-connected knee disabilities. Although DC 5003 does not define "incapacitating exacerbations", the term "incapacitating episodes" is used elsewhere in 38 C.F.R. § 4.71a in DC 5243 (2013) for intervertebral disc syndrome. Significantly, Note 1 of DC 5243 specifically requires bed rest prescribed by a physician and treatment by a physician. Here, the evidence of record does not reflect any bed rest prescribed by a physician. Although the Veteran has notes from his private podiatrist indicating that he is unable to stand or walk for long periods of time, the Board finds as fact that the examiner was not addressing the Veteran's knees as the sole basis for this difficulty. Specifically in a February 2007 statement, the podiatrist wrote that the Veteran was unable to stand or walk for prolonged periods of time secondary to neuropathy from trauma and diabetes. Nowhere in this document is the examiner addressing the Veteran's knees, but rather the Veteran's feet. Then in July 2007, the podiatrist wrote that the Veteran was unable to stand or walk for prolonged periods of time for the past four months without attributing it to any one or multiple disabilities. The Board finds that there is no evidence or credible contention that the Veteran was prescribed bed rest by a physician for his service-connected knee disabilities at any time during the appellate time period. The evidence in the record is replete with the Veteran's diabetes and foot ulcers impacting the Veteran's difficulties with walking. As such, a 20 percent rating would not be warranted under DC 5003. In addition, there is no evidence that at any point during the course of this appeal that flexion has been limited to 45 degrees or less, or extension limited beyond 10 degrees, in either knee, so as to permit the assignment of a higher evaluation based on the degree of limitation of motion, whether flexion or extension, as opposed to the presence of painful limitation of motion. Accordingly, the evidence does not establish that an evaluation is warranted under DC 5260 or 5261. The Board is required to consider the effect of pain and weakness when rating a service-connected disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In the present case, the evidence of record reveals complaints of knee pain. Specifically, pain was noted at the extremes in the 2006 examination, with active motion in the 2009 examination, as well as at 85 degrees flexion in the right knee and 90 degrees flexion in the left knee on the 2011 DBQ report. The record also reveals complaints of flare-ups of pain. The Board notes the Veteran's contention that he experiences a 30 percent loss of motion during flare-ups. However, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Specifically, the 2006 VA examiner reported no weakness, fatigue, or lack of endurance. It was also noted that repetitive motion did not cause any loss of motion or pain at that time. The 2009 VA examiner noted that there was pain, but no additional limitations after repetitive motion. The 2011 VA examiner noted no additional limitation with repetitive use, although there was weakened movement, excess fatigability, swelling, and pain. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The exacerbations the Veteran has with his knees are contemplated by the 10 percent ratings. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability."). Even when considering the Veteran's complaints of pain, the criteria for the higher rating based on the Veteran's range of motion are not met. The Veteran is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 435 (1994). To the extent that he has asserted the right and left knee disabilities warrant more than the assigned evaluations, the Board finds that the medical examinations do not establish that a rating in excess of the assigned 10 percent for painful limitation of motion is warranted. As this issue deals with the ratings assigned following the original claim for service connection, consideration has been given to the question of whether the application of staged ratings as enunciated by the Court, in the case of Fenderson, would be in order. See 12 Vet. App. 119 (1999). However, as outlined above, at no time since the grant of service connection has the Veteran's symptomatology regarding limitation of motion met the criteria for a higher disability evaluation in excess of 10 percent. As such, staged ratings are not warranted. However, the Board finds that the Veteran is entitled to separate 10 percent ratings, but no more, for slight instability in each knee. The Board notes that separate ratings may be assigned for knee disabilities under DCs 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to x-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Both opinions require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. Although the 2006 and 2009 VA examination reports indicate that there was no objective indication of instability, the 2011 VA examination report reflects that both knees demonstrated 1+ instability in the medial-lateral direction. The preponderance of the evidence is against a finding of moderate knee instability, however. The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. In this respect, as noted above, the objective clinical findings reflect that each knee manifests 1+ instability. Although the 2011 VA examiner indicated "residual of moderate severity" regarding the diagnosis, the Veteran's instability was noted to be 1+. Initially, the Board notes that the examiner was not stating that the instability was moderate, but rather that each of the Veteran's knees was of moderate severity, which would include the overall disability picture for each knee. Here, the Veteran now has a 20 percent rating for each knee, which is indicative of a moderate disability. As to consideration of whether the Veteran has any more than mild instability, the Board places significant weight on the VA examiner's findings from specific clinical tests designed to test instability in the knee joints. Here, the examiner had the opportunity to indicate whether the Veteran had 1+, 2+ and 3+ instability, and the examiner chose 1+. Therefore, a greater level of instability, such as 2+ or 3+, is not shown by the clinical findings. Thus, the Board finds that a higher rating for a greater level of instability is not warranted. The Board has also considered other knee-related diagnostic codes to determine if any would result in higher or additional separate ratings than that already assigned, but finds none. Diagnostic Code 5256 is inapt because there is no medical evidence of any ankylosis associated with the Veteran's knees. Additionally, there is no evidence showing he has ever been diagnosed with impairment of the tibula and fibula or genu recurvatum or has had removal of the semilunar cartilage. Therefore, Diagnostic Codes 5259, 5262, and 5263 do not assist the Veteran in obtaining a higher evaluation. With regard to Diagnostic Code 5258, there is no evidence of any recurrent dislocation of the semilunar cartilage. When asked in the November 2011 examination report regarding meniscus symptoms, the examiner indicated there were none. Therefore, ratings under any of these codes would also be inappropriate. In the Veteran's November 2007 VA Form 9, Appeal to the Board, he wrote, "I don't think my knees [are] severe, but [they are] moderate." Thus, the Veteran himself stated that his knees were not severe. The Veteran is now receiving 20 percent ratings for each knee, which is indicative of a moderate disability for each knee. Extraschedular consideration In reaching this decision, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). A determination of whether a Veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. To do this, the Board must determine if the criteria found in the rating schedule reasonably describes the Veteran's disability level and symptomatology. If this is the case, the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step -- to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this instance, the Veteran's limitation of motion and pain is clearly accounted for in Diagnostic Code 5003, as such code contemplates arthritis with painful, noncompensable limitation of motion. The Veteran's level of instability is clearly accounted for in Diagnostic Code 5257, as the Veteran was found by the November 2011 examiner that he had 1+ instability. Thus, the instability symptoms are contemplated by this code. The Board finds these Diagnostic Codes adequately address the Veteran's symptoms involving his knees. Further, there is no evidence of record suggesting that the Veteran's knee disabilities result in marked interference with employment or frequent periods of hospitalization. The evidence in this case does not show that the manifestations of the Veteran's service-connected disabilities have rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. There is no indication of such unusual or exceptional circumstances such as to warrant a remand for a referral to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. For the reasons and bases expressed above, the preponderance of the evidence is against a finding that the service-connected tendonitis of the left and right knee warrant any more than the 10 percent evaluations assigned. However, under the provisions of Diagnostic Code 5257, the assignment of separate 10 percent ratings for instability of the right and left knee is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for the Veteran's left knee tendonitis based on limitation of motion is denied. Entitlement to a rating in excess of 10 percent for the Veteran's right knee tendonitis based on limitation of motion is denied. Entitlement to a rating of 10 percent for the Veteran's left knee tendonitis based on instability is awarded, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating of 10 percent for the Veteran's right knee tendonitis based on instability is awarded, subject to the laws and regulations governing the award of monetary benefits. _______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs