Citation Nr: 1618384 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 12-11 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to June 22, 2011 for right degenerative joint disease and in excess of 30 percent total right knee replacement from August 1, 2012. 2. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, left knee. 3. Entitlement to a compensable evaluation for limitation of extension, left knee. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for bilateral knee degenerative joint disease (DJD) and assigned initial evaluations for each knee of 10 percent. In December 2014, the Board remanded the appeal for additional development. The Board notes that the Veteran's claims have been reviewed using the Veterans Benefits Management System (VBMS), VA's electronic system for document record keeping, and relevant documents contained therein are part of the Veteran's electronic claims file. FINDINGS OF FACT 1. Prior to June 22, 2011, right knee disability was not more nearly manifested by flexion limited to 30 degrees; there was full extension and no evidence of ankylosis, recurrent subluxation or lateral instability, "locking" and joint effusion, impairment of tibia or fibula, or genu recurvatum. 2. From August 1, 2012, right knee disability status post total joint replacement was not more nearly manifested by severe painful motion or weakness in the right lower extremity; right knee disability status post total joint replacement is manifested by slight instability. 3. Left knee disability is not more nearly manifested by flexion limited to 30 degrees or extension limited to 10 degrees; there is no evidence of ankylosis, recurrent subluxation or lateral instability, "locking" and joint effusion, impairment of tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to June 22, 2011 for right degenerative joint disease and in excess of 30 percent total right knee replacement from August 1, 2012 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5260-5055 (2015). 2. The criteria for separate 10 percent evaluation for right knee instability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5257 (2015). 3. The criteria for a disability evaluation in excess of 10 percent for degenerative joint disease of the left knee with limitation of flexion are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5010-5260 (2015). 4. The criteria for a compensable disability evaluation for left knee limitation of extension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5010-5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West. 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA met its duty to notify. VA sent to the Veteran all required notice in a March 2011 letter, prior to the rating decision on appeal. This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also met its duty assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran to include records from the Social Security Administration (SSA). These records have been associated with the claims file. VA further afforded the Veteran appropriate VA medical examinations. It is noted that the Veteran's claim was remanded by the Board for development. The requested actions were completed. Thus, the Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the appeal. II. Evaluations The Veteran submitted a claim for service connection for bilateral knee disability in March 2011. The RO granted service connection for bilateral knee disability in a June 2011 rating decision, assigning each knee a 10 percent disability evaluation, effective from March 18, 2011. The Veteran appealed the initial disability evaluations assigned. The RO subsequently assigned a 100 percent disability evaluation from June 22 to August 1, 2011 based on total knee replacement with a 30 percent rating following the expiration of the 100 percent rating. In a February 2016 rating decision, the RO assigned a separate 0 percent evaluation for left knee limitation of extension, effective from January 30, 2015. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can 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; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his 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. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). The additional code is shown after the hyphen. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). With any form of arthritis, painful motion is an important factor. It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. VA's General Counsel has held that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. If a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). However, if a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a , Diagnostic Code 5257) a separate 10 percent rating may be assigned where there is X-ray evidence of arthritis and evidence of painful motion. See VAOPGCPREC 9-98 (August 14, 1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 4.59. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Diagnostic Code 5055 provides criteria for evaluating impairment arising from the prosthetic replacement of a knee joint. For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Id. Diagnostic Code 5260 provides a noncompensable rating for limitation of flexion of the knee to 60 degrees; a 10 percent rating for limitation of flexion of the knee to 45 degrees; a 20 percent rating for limitation of flexion of the knee to 30 degrees; and a 30 percent rating for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5260. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. B. Factual Background Report of VA examination dated in May 2011 reflects complaint of pain and stiffness of both knees. Summary of joint symptoms reflects deformity, stiffness, and tenderness. There were no symptoms of giving way, instability, weakness, incoordination, dislocation/subluxation, locking, and effusions. The Veteran reported flare-ups of joint disease (moderate severity; weekly frequency; and hours duration) caused by prolonged standing and walking, and relieved by sitting. The Veteran was able to walk 1/4 mile, and stand for 15-30 minutes. Objectively, gait was normal. Bilaterally, there was no evidence of abnormal weight-bearing, grinding, clicks, snaps, instability, patellar abnormality, and meniscus abnormality. Bilaterally, there was tenderness and crepitus. The range of motion was from 0 to 110 degrees, bilaterally, with pain on active motion. Following repetitive motion testing, the range of motion for each knee was from 0 to 100 degrees and the examiner noted that the most important factor was pain. There was no ankylosis. X-ray showed degenerative joint disease of both knees. The examiner found that there was an effect on exercise (moderate), recreation (moderate), travel (moderate), and driving (moderate). Report of VA examination dated in January 2015 reflects review of claims file and evaluation of Veteran. The diagnoses were total right knee replacement with residual pain, and DJD of the left knee with pain. The Veteran reported bilateral knee pain, inability to do jumping, difficulty with stairs and getting in/out of car, inability to kneel. The Veteran reported flare-ups with weather and walking. Left knee range of motion was from 5 to 120 degrees. Right knee range of motion was from 5 to 115 degrees. The examiner noted pain that did not result in functional loss for either knee, but there was localized tenderness of the medial left and right knee, mild severity. The Veteran was able to perform repetitive use testing, which showed no additional loss of range of motion for either knee. The examiner was unable to say without resort to speculation whether pain, weakness, or incoordination significantly limit functional ability with repeated use over a period of time-but stated that pain and weakness are likely to occur when the joint is used repeatedly over time. The examiner noted that the examination was not conducted during a flare-up, but that the Veteran reported occasional flare-ups, mild to moderate severity, lasting minutes-improved with sitting down. There was no impairment of muscle strength or muscle atrophy of either knee. There was no ankylosis of either knee. There was no history of recurrent subluxation or lateral instability, but there was a history of recurrent effusion escribed as "chronic swelling in the knee to foot." Joint stability testing showed right knee medial instability of 1+ (0-5 millimeters). There was no left knee joint instability. No meniscus or patellar abnormality was found. Crepitus was shown. With regard to the right knee, the examiner noted total knee joint replacement in 2012 with residual swelling and pain and limitation of motion. The Veteran used a cane regularly for ambulation. The examiner indicated that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. X-rays showed arthritis of both knees. VA treatment records show, that in 2015, the Veteran had complaints of bilateral knee pain, characterized as 10 of 10 for the right knee and 3-4 for the left following cortisone injections. A July 2015 note shows left knee range of motion from 0 to 110 degrees with pain throughout. An October 2015 note reflects that left knee showed good range of motion and no swelling/effusion. An October 2015 note indicated that the Veteran's weight was in excess of 300 pounds, he had left hip and knee pain, and sought to obtain a scooter to assist with ambulation. C Right Knee Disability Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent prior to June 22, 2011 for right degenerative joint disease and in excess of 30 percent total right knee replacement from August 1, 2012. Neither the lay nor the medical evidence more nearly reflects the criteria for a higher evaluation for either period. 38 C.F.R. § 4.7. However, the Board finds that a separate 10 percent evaluation, and no more, based on slight instability, shown on VA examination dated in January 2015, is warranted. It is noted that two separate disability ratings are permitted under different diagnostic codes when the symptomatology and manifestations compensated under each code provision are not duplicative or overlapping. See Esteban, supra. Prior to June 22, 2011, the evaluation contemplated pain on motion. 38 C.F.R. § 4.59. It was also consistent with limitation of flexion to 45 degrees. In order to warrant a higher evaluation, there had to be the functional equivalent of limitation of flexion to 30 degrees. 38 C.F.R. § 4.7. Separate evaluations were assignable for compensable limitation of extension, subluxaion or instability. Prior to June 22, 2011, right knee disability was not more nearly manifested by flexion limited to 30 degrees. But rather, flexion was at worse following repetitive use to 100 degrees-significantly more flexion than the 30 degrees contemplated for the next higher evaluation based on limited flexion. Also, the Board finds that higher or separate evaluation based on other potentially applicable provisions of the rating schedule is not warranted for this period prior to June 22, 2011 because neither the lay nor the medical evidence shows ankylosis, recurrent subluxation or lateral instability, symptomatic removal of cartilage, "locking" and joint effusion, impairment of tibia or fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Code 5256-5259, 5261-5263. From August 1, 2012, neither the lay nor the medical evidence more nearly reflects severe painful motion or weakness in the right extremity. The Veteran is assigned the minimum 30 percent evaluation based on residual pain and limitation of motion. The Veteran had flexion to 115 degrees without evidence of severe painful motion or weakness, and there was no ankylosis of the right knee joint on VA examination in January 2015. Clinical findings at that time showed normal muscle strength and no muscle atrophy. The 30 percent disability evaluation contemplates painful and/or limited motion and weakness. Therefore, a higher evaluation under Diagnostic Code 5055 (rated by analogy to 5266, 5261, and 5262) is not warranted. The Board considered whether a higher or separate evaluation based on other potentially applicable provisions of the rating schedule is warranted. In this regard, the Board finds that a separate 10 percent evaluation based on slight instability is warranted based on the January 2015 VA examination findings for medial slight (0-5 millimeters) instability and no lateral instability. Because there is no lateral instability and only 1+ medial instability shown on the January 2015 VA examination, no more than a 10 percent evaluation is warranted for instability under Diagnostic Code 5257. See 38 C.F.R. § 4.7, 4.71a, Diagnostic Code 5257. A separate evaluation is not warranted based on symptomatic removal of cartilage, "locking" and joint effusion, impairment of tibia or fibula, or genu recurvatum as these symptoms are not shown during the period prior to June 22, 2011 or from August 1, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5256-5259, 5263. It is noted that right knee extension was limited to 5 on VA examination in January 2015. The Board separate evaluation based on limited extension is not warranted as limited extension is contemplated by the 30 percent disability rating assigned for total knee replacement. A higher disability evaluation under Diagnostic Code 5055-5260 is not warranted as the evidence does not more nearly show severe painful motion or weakness in the right extremity. The Board accepts that the Veteran is competent to report that his disability is worse. Layno, supra. The Board further accepts that the Veteran has functional impairment, pain, and flare-ups. See DeLuca, supra. The Board finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. Pain alone does not constitute additional functional loss unless there is actual limitation of function. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Notably, the Veteran's limited flexion is not compensably disabling under the schedular criteria set out at Diagnostic Code 5260; and, as indicated above, limited extension is fully contemplated by the assigned 30 percent rating. To the extent that the Veteran has crepitus, the Board finds that there is no indication that this causes functional limitation. Whether a disability is sufficient to meet the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher (or separate) evaluation than assigned for either period addressed herein, as explained and discussed above. Accordingly, an initial evaluation in excess of 10 percent prior to June 22, 2011 for right degenerative joint disease and in excess of 30 percent total right knee replacement from August 1, 2012 is denied. However, a separate 10 percent evaluation based on instability is warranted under Diagnostic Code 5257. The Board finds that there is no basis to further stage the ratings as the evidence shows no distinct period where right knee disability exhibited symptoms that would warrant different ratings than herein discussed. See, Fenderson, supra. There is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. It is noted that the Veteran's surgical scar is separated rated as noncompensable. Neither the lay nor the medical evidence shows that the Veteran's scar meets the criteria for a compensable evaluation in the absence of scar that is painful or unstable, or measures 39 square centimeters (6 inches square) or greater, or causes functional impairment. See 38 C.F.R. § 4.118, Diagnostic Code 7804-7805. D. Left Knee Disability. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for left knee DJD with limitation of flexion and a separate compensable evaluation for left knee DJD with limitation of extension. Neither the lay nor the medical evidence more nearly reflects the criteria for higher evaluations or additional separate evaluations. 38 C.F.R. § 4.7. The May 2011 VA examination report shows 110 degrees of flexion on active motion, and flexion limited to 100 degrees after repetitive use testing due to pain. Flexion to 100 degrees is significantly more flexion than the 30 degrees contemplated for the next higher evaluation based on limited flexion. Likewise, flexion of 115 degrees as shown on the January 2015 VA examination is better than contemplated by the next higher evaluation and there was no additional loss of motion following repetitive use testing. Therefore, the criteria for a higher evaluation based on limited flexion are not more nearly met at any time during this appeal. Also, because the Veteran's left knee extension was normal on VA examination in May 2011 and first shown to be limited to 5 degree on VA examination in January 2015, the Board finds that the evidence does not more nearly show extension limited to 10 degrees as is required for the next higher disability evaluation under the rating schedule. The Board has considered that with any form of arthritis, painful motion is an important factor and that it is the intent of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also, Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, the Lichtenfels rule is not applicable here because the Veteran is already compensated for limitation of motion with x-ray evidence of arthritis for the left knee under Diagnostic Code 5010-5260 and the assignment of another 10 percent under 5010-5261 would violate the rule against pyramiding. Essentially, the Veteran has been assigned a 10 percent evaluation for his left knee joint due to pain on motion under 38 C.F.R. § 4.59. The Board further considered whether a higher or separate evaluation may be assigned based on other potentially applicable provisions of the rating schedule. However, neither a higher nor a separate evaluation is not warranted for the left knee because neither the lay nor the medical evidence shows ankylosis, recurrent subluxation or lateral instability, symptomatic removal of cartilage, "locking" and joint effusion, impairment of tibia or fibula, or genu recurvatum. 38 C.F.R. § 4.71a, Diagnostic Code 5256-5259, 5261-5263. To the extent that the Veteran has crepitus, the Board finds that there is no indication that this causes functional limitation. Again, the Board accepts that the Veteran is competent to report that his disability is worse, Layno, supra, and that he has functional impairment, pain, and flare-ups. See DeLuca, supra. The Board finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. Pain alone does not constitute additional functional loss beyond that contemplated by the current evaluations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Higher evaluations for the left knee require the functional equivalent of flexion more nearly limited to 30 degrees and/or extension more nearly limited to 10 degrees. Whether a disability is sufficient to meet the schedular criteria for the assignment of a higher (or separate) evaluation is a factual determination. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher (or separate) evaluation than assigned for either period addressed herein, as explained and discussed above. Accordingly, the weight of the evidence is against an initial evaluation in excess of 10 percent for DJD of the left knee and a compensable evaluation for limited extension. Also, the Board finds that there is no basis to further stage the ratings as the evidence shows no distinct period where right knee disability exhibited symptoms that would warrant different ratings than herein discussed. See, Fenderson, supra. There is no doubt to resolve. 38 U.S.C.A. § 5107(b); Gilbert, supra. E. Extraschedular Consideration The Board has also considered whether the case should be referred to the Director of the VA Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2015). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's respiratory disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not warranted. Because the Veteran has previously been adjudicated as entitled to a total disability evaluation based on individual unemployability (TDIU), the issue of TDIU is moot. ORDER An initial evaluation in excess of 10 percent prior to June 22, 2011 for right degenerative joint disease and in excess of 30 percent total right knee replacement from August 1, 2012 is denied. A separate 10 percent disability evaluation for right knee instability is granted. An initial evaluation in excess of 10 percent for degenerative joint disease, left knee, is denied. A compensable evaluation for limitation of extension, left knee, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs