Citation Nr: 1620988 Decision Date: 05/24/16 Archive Date: 06/02/16 DOCKET NO. 11-13 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right knee strain with retropatellar pain syndrome ("right knee disability"). 2. Entitlement to an initial disability rating in excess of 10 percent for left knee strain with retropatellar pain syndrome, status post-arthroscopy ("left knee disability"). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran had active service from October 2002 to October 2003 and from March 2006 to June 2007. Prior to, and between, those periods, the Veteran was a member of the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted entitlement to service connection for right and left knee disabilities and assigned 10 percent disability ratings, effective October 10, 2008. Although the Veteran did not submit an explicit notice of disagreement with the July 2010 decision; he filed a claim for increased ratings in August 2010. To support his claim for increased ratings, he submitted additional private treatment records, and the RO obtained VA treatment records from July 2010 showing treatment for bilateral knee pain. He also underwent an October 2010 VA examination to reevaluate the severity of his service-connected knee disabilities. In a December 2010 rating decision, the RO denied the Veteran's claim for increased ratings. The U.S. Court of Appeals for the Federal Circuit has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010) (holding that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim). The evidence received within the appeal period after the initial rating is new and material; hence the appeal arises from the July 2010 rating decision. The Veteran testified at a hearing via video conference in August 2012 before the undersigned. A transcript of the hearing testimony is associated with the claims file and has been reviewed. In January 2014, the Board remanded this case for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to a 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. For the entire appeal period, the Veteran's right knee disability has been manifested by limitation of motion that at its worst, was from 5 degrees extension to 60 degrees flexion; complaints of instability, stiffness, buckling, popping, and locking; and objective evidence of painful motion, crepitus, effusion, and swelling that most nearly approximates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion; without objective evidence of instability or subluxation, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. For the entire appeal period, the Veteran's left knee disability has been manifested by limited range of motion, at worst, from 5 degrees extension to 70 degrees flexion; subjective complaints of instability, stiffness, buckling, popping, and locking; and objective evidence of painful motion, crepitus, effusion, meniscus injury, and swelling that most nearly approximates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion; without objective evidence of instability or subluxation, ankylosis, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for right knee strain with retropatellar pain syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.71a, Diagnostic Code 5258 (2015). 2. The criteria for an initial rating of 20 percent, but no higher, for left knee strain with retropatellar pain syndrome, status post-arthroscopy have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The issues on appeal arise from the initial award of service connection. 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also 38 C.F.R. § 3.159(b)(3)(i). Thus, because the November 2008 notice that was provided before service connection was granted was sufficient, 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); 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"). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private treatment records, VA examination reports, and lay statements from the Veteran. Neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal. The Veteran has repeatedly stated that he underwent an arthroscopy in March 2011. Records of this surgery are not among his service treatment records and he has not responded to requests to submit the records or authorize VA to obtain them. The AOJ inquired about any additional treatment records in December 2014, as directed in the Board's January 2014 remand, but no response was received. The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). In this case, the Veteran was afforded VA examinations in December 2008, October 2010, November 2011, and February 2015 to determine the nature and severity of his right and left knee disabilities. The Board finds that, when taken together, the examinations are adequate to evaluate the Veteran's service-connected knee disabilities as they include interviews with the Veteran, reviews of the record, and full examinations, addressing the relevant rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim and that no further examinations are necessary. The most recent examination reports substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board remanded the claim in April 2015 in order to provide the Veteran with a new VA examination. In its remand directives, the Board asked the examiner to specifically address functional impairment and whether there was any subluxation or instability. In February 2015, the Veteran underwent examinations, and the examiner specifically discussed the aforementioned subjects. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned specifically noted during the August 2012 hearing the issue on appeal, and clarified the evidence needed to substantiate the claim. In addition, in the remand following the Board hearing, the undersigned gave the Veteran the opportunity to submit additional treatment records and undergo a new VA examination in order to obtain evidence to substantiate the claim. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Initial Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Facts and Analysis The Veteran was afforded a VA examination in December 2008. He reported the following joint symptoms bilaterally: weakness, swelling, giving way, lack of endurance, and locking. The Veteran denied the following joint symptoms bilaterally: stiffness, heat, redness, fatigability, and dislocation. The Veteran reported constant pain of severity 8/10, which he described as crushing, aching, and sticking. The Veteran also reported that his knee symptoms prevented him from doing any strenuous activity and impacted his ability to walk up and down stairs. He indicated that he did not use any assistive devices for ambulation. On examination, the Veteran's gait was normal. There was evidence of tenderness and crepitus bilaterally, but no evidence of edema, effusion, weakness, redness, heat, guarding, subluxation, genu recurvatum, or locking pain. Range of motion testing revealed flexion of both knees to 140 degrees, with pain at 140 degrees, and normal extension. There was no additional limitation of range of motion after repetitive-use testing, but there was additional functional impairment due pain, fatigue, weakness, and lack of endurance, with pain having the major functional impact. The anterior instability, posterior instability, medial-lateral instability tests were normal bilaterally. X-rays of both knees were within normal limits. The Veteran was diagnosed with bilateral knee strain. The examiner indicated that the Veteran's bilateral knee condition affected daily activities in that it required the Veteran to avoid strenuous activities. A July 2010 VA treatment record shows that the Veteran was seen in the emergency department with complaints of bilateral knee pain at a severity level of 5/10. On examination, his muscle strength was 5/5, and instability testing was normal. X-rays showed marginal degenerative joint disease of the patella. Private treatment records from 2010 show that the Veteran was seen regularly for his bilateral knee disability and that he was often given time off of work. The Veteran was afforded a VA examination in October 2010. He reported the following joint symptoms bilaterally: weakness, stiffness, giving way, lack of endurance, locking, fatigability, and tenderness. The Veteran denied the following joint symptoms bilaterally: heat, redness, deformity, drainage, effusion, subluxation, and dislocation. The Veteran reported daily flare-ups of pain at a level of 7/10 during which he has difficulty walking. On examination, the Veteran had an abnormal gait, walked with a limp, and required a cane for ambulation. There was no evidence of locking pain, genu recurvatum, crepitus, edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding. Range of motion testing revealed flexion of both knees to 90 degrees, with pain at 90 degrees, and extension to zero degrees, with pain at zero degrees. There was no additional limitation of range of motion after repetitive-use testing, and there was no additional functional impairment due to pain, fatigue, weakness, lack of endurance, or incoordination. The anterior instability, posterior instability, medial-lateral instability tests were normal bilaterally. X-rays of both knees were within normal limits. The diagnosis was bilateral knee strain with retropatellar pain syndrome. The examiner indicated that the bilateral knee condition affected occupational and daily activities in that the Veteran had a hard time standing and moving around for prolonged periods. A February 2011 private treatment record shows that the Veteran reported popping, locking, catching, and swelling, bilaterally. He indicated that he could not go up or down stairs and that he was unable to tie his shoes. He rated the severity of his pain at 6-7/10. On examination, his gait was antalgic, and there was posterior swelling, bilaterally. Range of motion testing revealed flexion to 60 degrees and normal extension of the right knee and flexion to 100 degrees and normal extension of the left knee. The Veteran was unable to single leg balance bilaterally, and there was a two plus effusion bilaterally. Lachman and McMurray tests were negative. The Veteran was diagnosed with left knee meniscal injury and effusion and right knee osteochondral injury and effusion. The physician indicated that the Veteran's knee condition resulted in a severely limited ability to walk and function. Private records from 2011 show that the Veteran was given work restrictions due to his bilateral knee disability. A July 2011 record shows that the Veteran was released to work with permanent restrictions of less than 10 pounds lifting, pushing, and pulling, and no crawling, kneeling, squatting, or climbing stairs or ladders. A November 2011 record shows that the Veteran had reached maximum medical improvement, with permanent restrictions of walking with crutches as needed, walking no more than 100 yards without a rest break, and occasional crawling, kneeling, squatting, and climbing. The Veteran was afforded a VA examination in November 2011. He reported the following joint symptoms, bilaterally: weakness, swelling, redness, giving way, lack of endurance, and pain. The Veteran denied the following joint symptoms bilaterally: stiffness, heat, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. The Veteran reported that it felt as if the bones behind his knee caps were grinding against each other. He also reported that he had had surgery on his left knee in March 2011 and that he had residual pain. He reported flare-ups that made it painful to ambulate or bend his knees, and that he used crutches most of the time for ambulation. On examination, the Veteran had normal muscle strength, with no evidence of genu recurvatum or ankylosis. Range of motion testing revealed flexion of both knees to 100 degrees, with pain at 100 degrees, and extension to zero degrees, with pain at zero degrees. The Veteran was unable to perform repetitive use testing due to pain. There was additional functional impairment due to excess fatigability and pain on movement. The examiner noted pain on palpation of the joint line bilaterally. The Veteran was unable to perform stability testing due to pain. The examiner indicated that there was no history or evidence of recurrent patellar subluxation or dislocation. X-rays showed no interval degenerative changes, joint effusion, acute displaced fracture, or dislocation. In a January 2012 letter, the Veteran was informed by his employer, a department of corrections, that he was being terminated due to knee related work restrictions. A June 2012 VA treatment record shows that the Veteran reported pain at a severity of 7/10. On examination, the Veteran's flexion was limited to 80 degrees bilaterally, and there was no evidence of effusion. At the August 2012 hearing, the Veteran testified that he is in constant pain and that he cannot bend his knees. He reported that he has problems with knee swelling and that he has fallen because his knees are unstable. He indicated that his knees will "quit when they want to," and that he wears knee braces to "keep them in place." The Veteran also testified that he had undergone surgery on his left knee in March 2011, but that it was not a total knee replacement. He indicated that since his November 2011 VA examination, his knee symptoms had worsened in that he was having balance problems due to knee instability. The Veteran was afforded a VA examination in February 2015. He reported the following joint symptoms bilaterally: weakness, swelling, giving way, lack of endurance, and locking. He denied the following joint symptoms bilaterally: stiffness, heat, redness, fatigability, and dislocation. He reported constant pain of a severity level of 8/10. He also denied flare-ups, but reported daily weakness and stiffness lasting more than one hour with moderate limitations. On examination, flexion of both knees was limited to 80 degrees, with pain at 70 degrees, and extension of both knees was limited to five degrees, with pain at five degrees. The Veteran was unable to perform repetitive use testing due to pain and significant weakness. There was additional functional impairment due to less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, and instability of station. The examiner indicated that pain, weakness, and fatigability could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. The examiner also opined that this additional limitation would result in additional pain on use, but not additional loss of range of motion. There was no tenderness or pain to palpation of the joint line or soft tissues of either knee. Muscle strength testing was 4/5 bilaterally. The Veteran was unable to perform anterior and posterior instability tests due to pain, but the medial-lateral instability test was normal bilaterally. The examiner indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The examiner further indicated that the Veteran had residuals of left knee surgery, including intermediate degrees of residual weakness, pain, or limitation of motion and chronic residuals consisting of severe painful motion or weakness. The examiner also noted that the Veteran constantly used bilateral knee braces for knee strains and pain. The examiner indicated that the Veteran's bilateral knee condition impacted his ability to work in that he was precluded from lifting, could only walk for a half a block at a time, and sit or stand for thirty minutes at one time. Analysis Diagnostic Codes 5256 through 5263 address disability ratings for the knee. Diagnostic Code 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. Under Diagnostic Code 5257, a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned for severe recurrent subluxation or lateral instability. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. Under Diagnostic Code 5262, impairment of the tibia and fibula warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. Diagnostic Code 5263 provides a 10 percent rating where there is evidence of acquired genu recurvatum or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. The VA General Counsel has held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23- 97. Additionally, the General Counsel held that separate ratings under Code 5260 (limitation of flexion of a knee) and Code 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet.App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. The Veteran is currently in receipt of 10 percent ratings under Diagnostic Code 5260 for painful motion. Although he has reportedly undergone knee surgery, this has been characterized as arthroscopic. Arthroscopic surgery is surgery performed on joints using a fiberoptic system that allows visualization of the joint and surrounding structures for the purpose of diagnosis and treatment. Arthroscopic Surgery. (n.d.) Farlex Partner Medical Dictionary. (2012). Retrieved May 20 2016 from http://medical-dictionary.thefreedictionary.com/arthroscopic+surgery. The Veteran reported to the November 2011 and February 2015 VA examiners that he had undergone a total left knee replacement in March 2011. However, upon further questioning at the August 2012 hearing, the Veteran testified that he had left knee arthroscopic surgery, but not a total knee replacement. There is no indication that this surgery entailed prosthetic replacement of any part of the knee; hence a rating under Diagnostic Code 5055 would not be warranted. A higher rating under Diagnostic Codes 5260 or 5261, which rate limitation of motion, is not warranted because the evidence does not show a sufficient limitation of range of motion for compensation. The flexion of the Veteran's right knee has measured, at worst, as 60 degrees with pain, and extension has consistently been measured at 0 degrees (normal), except during the February 2015 VA examination where extension was limited to five degrees with pain. The flexion of the Veteran's left knee has measured, at worst, as 80 degrees with pain at 70 degrees, and extension has consistently been measured at 0 degrees (normal), except during the February 2015 VA examination where extension was limited to five degrees with pain. Thus, the evidence shows the Veteran's greatest limitation of range of motion was 5 to 60 degrees on the right and 5 to 70 degrees on the left, even considering additional limitation of motion due to pain and repetitive motion. In essence, neither limitation of flexion nor extension was compensable pursuant to Diagnostic Code 5260 or 5261 at any time during the appeal period. However, the Veteran's knee disabilities have been characterized by such symptoms as painful motion, weakness, crepitus, popping, locking, catching, swelling, and effusion. There was objective evidence of crepitus during the December 2008 VA examination, and the Veteran complained of episodes of swelling and locking. During the October 2010 VA examination, the Veteran reported episodes of locking, and he required a cane for ambulation. A February 2011 private treatment record documented subjective complaints of popping, locking, and catching, and there was objective evidence of swelling and effusion. Moreover, the private physician diagnosed the Veteran with left knee meniscal injury and effusion and right knee osteochondral injury and effusion and indicated that the Veteran's knee condition resulted in a severely limited ability to walk and function. During the November 2011 VA examination, the Veteran reported episodes of swelling and grinding, and during the February 2015 VA examination, the Veteran reported locking and stiffness, and there was objective evidence of swelling. The Veteran has consistently described his knee pain as aching, crushing, and sticking, and, on several occasions, the Veteran was unable to perform repetitive use and instability testing due to extremely painful motion. Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the evidence is in equipoise on the question of whether manifestations of the Veteran's right and left knee disabilities more closely approximates dislocation of semilunar cartilage with frequent episodes of joint "locking," pain, and effusion so that the criteria for the 20 percent rating under DC 5258 are met. In this case, the Veteran's knee disabilities have been manifested by frequent symptoms of joint pain, weakness, swelling, locking, and popping, with evidence of crepitus, effusion, and limited and painful range of motion, which the Board finds more closely approximates the criteria for a 20 percent rating under Diagnostic Code 5258. Moreover, multiple VA examiners found that the Veteran's bilateral knee disability had significant effects on his occupational functioning due to pain and limitation of motion. The Veteran is competent to give evidence about what he has experienced such as painful motion and instability. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has consistently reported severe pain and weakness that affects his ability to stand and walk. He complained to VA examiners of weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness, and pain. The Veteran uses a cane and crutches for ambulation, and wears knee braces. During the August 2012 hearing, he reported swelling, pain, and a feeling of weakness in his knees. The above evidence, including the Veteran's competent statements, reflects that limitation of motion and functional impairment due to pain, weakness, and fatigability cause the Veteran reduced ability to use his knees. Thus, with resolution of reasonable doubt in the Veteran's favor, the Veteran's right and left knee disabilities more closely approximate dislocation of semilunar cartilage with frequent episodes of joint "locking," pain, and effusion so that the criteria for the 20 percent rating under DC 5258 are met. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). DC 5259 provides for only a 10 percent rating for the same (but lesser) symptoms, so rating under that diagnostic code would be less beneficial to the Veteran. A separate rating under DC 5259 is not warranted because there is no indication that the semilunar cartilage (or meniscus) has been removed. A separate rating under DC 5258 would constitute pyramiding if ratings were also granted under DC 5010-5003, DC 5260, or DC 5261. The Veteran's knee disabilities have been manifested by joint locking and swelling, crepitus, painful motion, and effusion. The diagnostic codes overlap in ratings based on pain, swelling, crepitus, and locking as forms of limitation of motion; therefore, assigning separate ratings under both DC 558 and DC 5010-5003, DC 5260, or DC 5261 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). A remaining question is whether higher ratings would be possible under DC 5260 or 5261. The reported ranges of motion on examinations have not met or approximated the criteria for even a compensable rating under those codes. While functional factors have been identified, there has not been additional limitation of motion attributed to these impairments. On the most recent examination, the examiner found that there was no additional limitation of motion due to noted functional factors. Although an examiner opined that there would be significant limitation during flare ups, the Veteran reported on the examination that he was not experiencing flare-ups. Accordingly, 38 C.F.R. §§ 4.40, 4.45 would not provide a basis for increased ratings under DC 5260 or 5261. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran's knee disabilities have not been manifested by dislocation of the semilunar cartilage (meniscus), the knee disability has been manifested by symptoms of painful motion, weakness, giving way, crepitus, grinding, popping, locking, swelling, and effusion, which the Board finds more closely approximates the criteria for a 20 percent rating under Diagnostic Code 5258. Consequently, the Board finds that a 20 percent rating under Diagnostic Code 5258 is warranted for both knees as use of Diagnostic Code 5258 is more favorable. As noted above, in any case involving knee pain or locking, separate ratings may not be assigned under DC 5260 and 5258 because to do so would constitute pyramiding; therefore, because the Board is granting a higher rating of 20 percent under Diagnostic Code 5258, the 10 percent ratings under Diagnostic Code 5260 will be discontinued. Moreover, this change in Diagnostic Code does not amount to a reduction, as the ratings of the Veteran's knee disabilities with respect to limitation of motion increase from 10 percent to 20 percent as a result of this decision. The Board notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis, mal- or nonunion of the tibia and/or fibula, or genu recurvatum have not been demonstrated. There has been no finding of knee ankylosis, and the evidence clearly shows that the Veteran retains significant range of motion in his knees. In addition, the evidence does not show impairment of the tibia or fibula. The Board acknowledges that the Veteran reported using knee braces; however, the evidence of record does not indicate that the braces were prescribed due to any nonunion of the tibia and fibula. Lacking any positive radiological evidence or a medical opinion for malunion or nonunion of the tibia and fibula, no higher rating is warranted under Diagnostic Code 5262. Similarly, there is no evidence of genu recurvatum. With respect to instability under Diagnostic Code 5257, the evidence of record shows numerous subjective complaints of instability, weakness, and giving out. Accordingly, a separate rating for instability or recurrent subluxation of the knees is not warranted in this case. Despite the Veteran's subjective complaints, available test results have shown no joint instability or recurrent subluxation. Anterior instability, posterior instability, medial-lateral instability tests were normal bilaterally during the December 2008 and October 2010 VA examinations. Additionally, a VA treatment record from July 2010 shows normal instability testing, and a February 2011 private treatment record shows normal Lachman and McMurray tests. Although the Veteran was unable to perform instability testing during the November 2011 VA examination due to pain, x-rays showed no evidence of dislocation and the examiner noted no history or evidence of recurrent subluxation or dislocation. Finally, a medial-lateral instability test was normal during the February 2015 VA examination. The Veteran is competent to report that his knees felt unstable or buckled but this has not been apparent on any examination or noted during treatment. The Board thus affords more weight to the objective medical evidence, based on examination and testing of the Veteran's knee that has not revealed evidence of recurrent subluxation or instability. Moreover, the Board notes that part of the basis for the Board's award of 20 percent ratings under Diagnostic Code 5258 above is the Veteran's subjective complaints of giving way and weakness, as well as his episodes of locking, stiffness, pain, and use of braces and canes for ambulation; thus, a separate evaluation in this case for instability/recurrent patellar subluxation would result in impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5257. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of 20 percent disability ratings for dislocated semilunar cartilage of the right and left knees. See 38 C.F.R. § 4.7 (2015). As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has carefully compared the level of severity and symptomatology of the Veteran's right and left knee disabilities with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which the Veteran's disability is rated. There are no additional symptoms that are not addressed by the rating schedule. The Veteran has not described any exceptional or unusual features of his disability. In fact, as discussed above, the symptomatology of the Veteran's knee disability centers on his complaints of pain, instability, and limited range of motion. These symptoms are specifically contemplated under the assigned ratings criteria. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced. In this case, the Veteran's symptoms and manifestations are addressed by the appropriate diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not a case involving an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities. ORDER Entitlement to an initial 20 percent disability rating, but no higher, for right knee strain with retropatellar pain syndrome is granted, subject to the law and regulations governing the criteria for award of monetary benefits. Entitlement to an initial 20 percent disability rating, but no higher, for left knee strain with retropatellar pain syndrome, status post-arthroscopy is granted, subject to the law and regulations governing the criteria for award of monetary benefits. REMAND Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not currently meet the percentage requirements for TDIU; but VA policy is to grant TDIU in all cases where service connected disabilities cause unemployability. 38 C.F.R. § 4.16(b). In the present case, there is evidence that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected knee disabilities. See 38 C.F.R. §§ 3.340, 4.16(b). The Veteran reportedly lost his last employment as a corrections officer in March 2010 due to these disabilities; and VA examiners have found that the knee disabilities would cause significant difficulty in employment. Based on these facts, it appears that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance; but must insure that the case is referred to the Director of VA's Compensation and Pension Service (C&P). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Forward this case to the Director, Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b) (2015). 2. If the benefit sought on appeal remains denied, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs