Citation Nr: 1552994 Decision Date: 12/18/15 Archive Date: 12/23/15 DOCKET NO. 12-16 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for right knee instability. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from February 2006 to June 2010, with service in Iraq. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from November 2011 and June 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2015, the Board remanded the issues to the Appeals Management Center (AMC) for further development. The case was subsequently returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals documents that are duplicative of the evidence in the VBMS file. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right knee instability was productive of painful motion, but was not productive of actual or functional extension limited to 20 degrees; actual or functional flexion limited to 15 degrees; recurrent subluxation or lateral instability; ankylosis; impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran's left knee instability was productive of painful motion, but was not productive of actual or functional extension limited to 15 degrees; actual or functional flexion limited to 30 degrees; recurrent subluxation or lateral instability; ankylosis; impairment of the tibia and fibula; or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2015). 2. The criteria for an initial rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his bilateral knee disabilities. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment notes, have been associated with the claims file and were reviewed by both the RO and the Board in connection with the claims. The Veteran has not identified any other outstanding records that are pertinent to the issues currently on appeal. In this case, the Veteran was afforded a VA joints examination in July 2011 and VA knee examinations in April 2015 and June 2015. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, the examinations were based upon consideration of the Veteran's pertinent medical history, as well as his lay assertions and current complaints, and the examiners described the knee disabilities in detail sufficient to allow the Board to make a fully informed determination. Id. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral knee disabilities since he was last examined. 38 C.F.R. § 3.327(a) (2015). 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. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2015). The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). However, where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually 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. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). A veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. If a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 9-98. In addition, a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion was considered. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. Because the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. See VAOPGCPREC 9-98. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, the Veteran's service-connected right knee disability is currently assigned a 20 percent evaluation and his service-connected left knee disability is currently assigned a 10 percent evaluation, pursuant to Diagnostic Code 5257. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. In addition, Diagnostic Code 5003 states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which, in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased or separate ratings for his bilateral knee disabilities. At the outset, the Board notes that the Veteran has already been assigned separate 10 percent evaluations for both knees for degenerative joint disease, and these evaluations are not on appeal before the Board. Therefore, the arthritis rating criteria pertaining to the Veteran's knees will not be discussed in this decision. In considering the criteria of Diagnostic Code 5257, the Board notes that there is no current right or left knee instability. While the July 2011 VA examiner found there was mild medial or lateral instability and mild MCL laxity in the left knee and moderate anterior or posterior instability in the right knee, the April 2015 and June 2015 VA examiners both indicated that joint stability tests were normal in both knees, and that there was no evidence of anterior, posterior, or medial-lateral instability in either knee. In addition, both examiners reported that there was no evidence or history of any recurrent patellar subluxation or dislocation. Despite these findings, the Board will not disturb the currently assigned evaluations. Thus, higher evaluations are not warranted under this diagnostic code. In an effort to afford the Veteran the highest possible rating, the Board has also determined whether any other rating criteria are applicable. The Board does not find that the Veteran warrants a separate rating for the right knee under Diagnostic Code 5258 for dislocated semilunar cartilage. Likewise, the Board does not find that the Veteran warrants a separate or higher rating for the left knee under Diagnostic Code 5258. A review of the evidence shows that the July 2011 VA examiner noted no patellar or meniscus abnormalities in the right knee; however, the July 2011 VA examiner did note that the Veteran had a left knee meniscus abnormality. Specifically, a December 2010 VA x-ray report documented a history of a torn meniscus, sprained ACL, and torn MCL during service, in 2008. However, the July 2011 VA examiner also noted that there was no locking, effusion, or dislocation of the left knee. Further, the July 2011 VA examiner reported that there was no evidence of a meniscus tear. The April 2015 VA examiner also noted that the Veteran had a meniscus condition; specifically, the Veteran had a history of MCL tears in both knees and a sprained ACL and meniscal tear in the left knee. In addition, the April 2015 VA examiner noted that the Veteran had frequent episodes of joint pain and joint effusion in both knees. However, the June 2015 VA examiner noted that the Veteran did not have a meniscus condition in either knee. Despite the Veteran sustaining a left knee meniscal tear and MCL tears in both knees during service, the evidence shows that his current assigned rating for the arthritis is based upon painful motion and thus contemplates residual pain from the tears. The Board concludes that separate evaluations under Diagnostic Code 5258 are not warranted as such an award constitutes impermissible pyramiding. In general, the evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. 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 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. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). When a Veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different diagnostic codes with different ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. See e.g., VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (August 14, 1998). The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate. Id. Here, knee pain is already contemplated under the ratings assigned for painful limitation of motion and arthritis that are not considered herein. As noted above, that evaluation is not to be disturbed and to award a rating based on dislocated semilunar cartilage would consider the same symptoms; accordingly, such an evaluation is not warranted. The Board finds that the Veteran is not entitled to higher or separate evaluations under Diagnostic Code 5260 for limitation of flexion. For the right knee, the record does not show that flexion was limited to 15 degrees to warrant a higher evaluation at any point during the appeal period. In fact, during the July 2011 VA examination, the Veteran demonstrated right knee flexion to 125 degrees. During the April 2015 VA examination, the Veteran demonstrated right knee flexion to 140 degrees with pain. During the June 2015 VA examination, he demonstrated right knee flexion to 130 degrees without pain. While he demonstrated objective evidence of painful motion with active motion of the right knee during the July 2011 and April 2015 VA examinations, the painful motion did not nearly approximate limited flexion to 15 degrees. For the left knee, the record does not show that flexion was limited to 30 degrees to warrant a higher evaluation at any point during the appeal period. During the July 2011 VA examination, the Veteran demonstrated left knee flexion to 110 degrees with no pain with active motion. During the April 2015 VA examination, the Veteran demonstrated left knee flexion to 140 degrees with pain on motion. During the June 2015 VA examination, the Veteran demonstrated left knee flexion to 130 degrees without pain. Again, while he demonstrated objective evidence of painful motion on range of motion testing of the left knee in April 2015, the painful motion did not nearly approximate limited flexion to 30 degrees. Moreover, as shown above, the Veteran did not demonstrate right or left knee flexion limited to 45 degrees during the appeal; therefore, separate evaluations are not warranted under this diagnostic code. Thus, the Veteran does not meet the criteria for increased or separate evaluations under Diagnostic Code 5260 for either knee. The Board also finds that the Veteran is not entitled to higher or separate ratings under Diagnostic Code 5261 for limitation of extension for either knee. During the period on appeal, the record does not show that right knee extension was limited to 20 degrees or that left knee extension was limited to 15 degrees to warrant higher disability ratings under these criteria. In fact, during the July 2011, April 2015, and June 2015 VA examinations, the Veteran demonstrated right and left knee extension to 0 degrees. As such, the current rating assigned contemplates the Veteran's symptomatology of painful motion, and increased or separate evaluations under Diagnostic Code 5261 are not warranted. The Board has also considered whether a higher or separate evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis of either knee, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In fact, the July 2011, April 2015, and June 2015 VA examiners noted that there was no joint ankylosis in either knee. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran's knees are not fixated or immobile even when painful motion is considered. During the July 2011 VA examination, the Veteran denied any episodes of dislocation or subluxation and the April 2015 VA examiner noted that the Veteran did not have and he never had a history of recurrent patellar disclocation or subluxation. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5259, 5262, and 5263. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, increased evaluations for the Veteran's right and left knee disabilities are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 and 10 percent evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period on appeal. However, the effect of the pain in the Veteran's right and left knees is already contemplated in the assigned evaluations. 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 beyond those already assigned. Indeed, the April 2015 and June 2015 VA examiners noted that the Veteran's knees did not have any diminution with repetitive testing. The examiners also noted 5/5 muscle strength, and no weakened movement, excess fatigability, incoordination, swelling, deformity, or atrophy of disuse. Even considering painful motion, he still did not have a decrease in range of motion in either knee. During both examinations, he demonstrated extension to 0 degrees and flexion to 130 and 140 degrees after repetitive use testing. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran's service-connected right and left knee disabilities. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's right and left knee disabilities are so exceptional or unusual as to warrant the assignment of higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected right knee disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, the Veteran's chief complaints, including pain, are contemplated in the rating criteria. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case. Thus, it cannot be said that the available schedular evaluations for this disability are inadequate. There are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations, as discussed above. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right and left knee disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating in excess of 20 percent for right knee instability is denied. An initial rating in excess of 10 percent for left knee instability is denied. REMAND In this case, the Veteran is service-connected for posttraumatic stress disorder (PTSD) (50 percent disabling), posttraumatic migraines associated with mild traumatic brain injury (30 percent disabling), right knee instability (20 percent disabling), left knee instability (10 percent disabling), right knee degenerative joint disease (10 percent disabling), left knee degenerative joint disease (10 percent disabling), tinnitus associated with mild traumatic brain injury (10 percent disabling), and mild traumatic brain injury (10 percent disabling). The combined evaluation is 90 percent. The Board finds that a social and industrial survey would be helpful in ascertaining the overall impact of the Veteran's service-connected disabilities on his ability to work. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA social and industrial survey (field examination) by a VA social worker or other appropriate personnel. The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA social and industrial survey is to ascertain the impact of the Veteran's service-connected disabilities on his ability to work. The examiner may seek development in any survey area which he or she determines is necessary to provide a complete report. The Veteran is currently service-connected for posttraumatic stress disorder (PTSD) (50 percent disabling), posttraumatic migraines associated with mild traumatic brain injury (30 percent disabling), right knee instability (20 percent disabling), left knee instability (10 percent disabling), right knee degenerative joint disease (10 percent disabling), left knee degenerative joint disease (10 percent disabling), tinnitus associated with mild traumatic brain injury (10 percent disabling), and mild traumatic brain injury (10 percent disabling). 2. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs