Citation Nr: 1621712 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 12-04 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected left knee disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected left knee disability. 3. Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to cervical spine disability. 4. Entitlement to a disability rating greater than 20 percent for left knee instability prior to September 26, 2015. 5. Entitlement to a disability rating greater than 30 percent for left knee instability since September 26, 2015. 6. Entitlement to a schedular and extraschedular disability rating greater than 10 percent for left knee arthritis. 7. Entitlement to a disability rating greater than 10 percent for right knee arthritis. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Timothy White, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from June 1977 to June 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in November 2010, December 2011, and February 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge at the Muskogee RO. A transcript of the hearing has been associated with the record. The issue of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected knee disabilities 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 competent medical and most probative evidence of record establishes that the Veteran's cervical spine disability is not etiologically related to active service. 2. The competent medical and most probative evidence of record establishes that the cervical spine arthritis was not present in service or manifest to a compensable degree within one year of service discharge; and there is no such evidence relating it to service or any service-connected disability. 3. The competent medical and most probative evidence fails to establish that the Veteran has been diagnosed with left upper extremity neuropathy at any time during the pendency of the appeal. 4. Prior to September 26, 2015, the Veteran's left knee instability was characterized by wearing a brace and experiences of pain and giving way, best characterized by moderate lateral instability. 5. Since September 26, 2015, the Veteran's left knee instability has been assigned a 30 percent rating, the maximum schedular evaluation assignable for severe instability. 6. The Veteran's left knee symptomatology includes pain and limited motion, with functional loss demonstrated by an antalgic gait, the required use of a brace and a cane, and pain on weightbearing; however, there was no showing of extension limited to 15 degrees, flexion limited to 30 degrees, ankylosis of the knee, impairment of the tibia and fibula with malunion with moderate knee disability or dislocated semilunar cartilage. 7. The Veteran's right knee symptomatology includes pain and limited motion; however, there was no showing of extension limited to 15 degrees, flexion limited to 30 degrees, ankylosis of the knee, impairment of the tibia and fibula with malunion with moderate knee disability, or dislocated semilunar cartilage, and no functional loss beyond that already compensated through painful motion. 8. For the entire appeal period, the Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation, and are adequately contemplated by the rating schedule. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability, diagnosed as chronic cervicalgia, degenerative changes, straightening of the cervical spine and mild degenerative osteoarthritis with narrowing of the fifth and sixth interspaces, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for service connection for left upper extremity neuropathy are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 3. Prior to September 26, 2015, the criteria for a rating greater than 20 percent for left knee instability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2015). 4. There is no legal basis for the assignment of an evaluation in excess of 30 percent since September 26, 2015 for service-connected left knee instability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2015). 5. The criteria for a disability rating of 20 percent for service-connected left knee arthritis, based on limitation of motion and functional loss are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2015). 6. The schedular criteria for a disability rating in excess of 10 percent for service-connected right knee arthritis, based on limitation of motion, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2015). 7. The criteria for entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In April 2011 VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The issue was readjudicated in a December 2015 supplemental statement of the case. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim of entitlement to a higher rating for knee disabilities. Most recently, in September 2015 the Veteran was provided a VA examination and the report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal that are decided herein, and is adequate for purposes of this appeal. At the December 2014 Board hearing, testimony was elicited by the representative and the undersigned regarding the appellant's service and the surrounding circumstances of any injury, and the current symptoms of the service-connected disabilities; thus the material issues on appeal were fully developed. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see also 38 C.F.R. § 3.103(c)(2) (2015). Further, there has been substantial compliance with the Board's February 2015 remand directives, pertaining to the issues decided on appeal, and as evidenced by the September 2015 VA examination. There is no evidence that any VA error in notifying or assisting the Veteran reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Service Connection The Veteran seeks service connection for cervical spine disability that he contends began during military service. At his December 2014 hearing he reported that he injured his neck in the same July 1977 incident in which he injured his left knee. In the alternative, he suggests that his neck disability was caused or worsened by his service-connected knee disabilities. He has suggested that his left upper extremity neuropathy is secondary to a cervical spine disability. Because these claims involve similar issues and evidence, and similar legal principles apply, the Board will discuss them in a common discussion. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis (to include degenerative disc disease) are subject to presumptive service connection if manifest to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis (to include degenerative disc disease) is a qualifying chronic disease under 38 C.F.R. § 3.309(a). Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Service treatment records show that in July 1977 the Veteran had an accident, wherein his left knee was injured. Separation examination in June 1979 shows that the Veteran reported no recurrent neck complaints. In August 2006 VA treatment records show that the Veteran sought care for pain at the base of his neck after his grandson jumped on him. At that time, impression was of no evidence of acute disease, but mild degenerative changes were present. In December 2010 the Veteran reported that he was losing feeling in the left fingers, with pain at the base of his neck, radiating to his trapezi and beneath his scapula. Impression was of chronic cervicalgia without evidence of radiculopathy. At a VA neurological examination of the upper extremities in February 2011, vibration, temperature and sensory testing were intact. In a March 2013 VA examination, the Veteran reported experiencing left hand numbness. The examiner, however, determined that there were no symptoms attributable to a peripheral nerve condition. Testing revealed normal sensation testing for light touch. Upper extremity nerves and radicular groups were tested, with normal results on the upper left extremity. March 2013 examination of the cervical spine resulted in diagnoses of degeneration for cervical intervertebral disc, mild, and mild degenerative arthritis of the cervical spine. Even following testing, there was no diagnosis for radiculopathy. The Veteran reported his primary care physician seemed to indicate to him that his knees may have caused his neck problems because of the way he carried himself. The Veteran recalled instances that his knees gave out causing him to fall, and thought that such a fall may have also injured his neck. He did not remember a direct injury to his neck; however, he thought his neck pain was related to his knee pain. The Veteran reported regularly using a cane. The examiner opined that the Veteran's claimed conditions were less likely than not proximately due to or the result of the Veteran's service-connected knee condition. The examiner concluded that the Veteran's neck condition was less likely than not aggravated or a result of any event or condition that occurred in service or within one year of discharge, and less likely than not aggravated or a result of the service-connected knee conditions. Specifically, the examiner opined that the natural progression of the neck condition was not altered or worsened by any event or condition that occurred or expressed itself during service. The examiner reasoned that the Veteran provided a very inconsistent and illogical history of any neck condition being related to his knees, with vague and inconsistent recollection of his neck pain and reported relation to his knees. Regarding the Veteran's reported headaches in relation to his neck, the examiner reasoned that these were what he described as "glaucoma" headaches, and appeared related to chronic muscle tension or even narcotic-related headaches. Radiologic testing showed the neck condition was mild and there was no functional loss on evaluation. Additionally, the examiner noted that the Veteran demonstrated his agility by stooping, bending, squatting and crawling spontaneously to search for missing pills dropped on the office floor, such that the examiner considered the severity of the neck condition to be doubtful, and not in any way related to the knees. The Veteran had pulled his shirt over his torso without any hesitation or difficulty, and scooted his neck and head to the top of the examining table without demonstrating any neck difficulty. Further, the examiner reasoned that it was illogical that the current knee conditions would cause the mild diffuse degenerative changes. It was more likely than not that the mild degenerative changes in the cervical spine were due to the normal aging process. The examiner explained that common conditions related to degenerative changes in the spine, including abnormalities identified on imaging studies, such as annular tears, facet arthropathy, and disk degeneration did not correlate well with symptoms, clinical findings or causation analysis, and were not related according to guides. The examiner related that congenital abnormalities such as spina bifida occulta, abnormal segmentation, and conjoined nerve roots were not rated as impairments, and developmental anomalies such as spondylolisthesis, kyphosis and excessive lordosis or scoliosis were not ratable. Reports indicated that approximately thirty percent of persons who never experienced back pain would have an imaging study that could be interpreted as positive for a herniated disc, and fifty percent or more would have studies interpreted as bulging discs. The prevalence of degenerative changes, bulges, and herniations increased with advancing age. Developmental findings, such as spondylolysis were normally found in 7 percent of adults and spondylolisthesis in 3 percent of adults. The examiner cited to studies indicating that the identification of degenerative disc disease at one or more levels, similar to the findings of arthrosis in an extremity joint, was not diagnostic of injury, or disease related, because such degenerative changes could be a natural consequence of the aging process. VA treatment records from June 2014 show that the Veteran reported pain in his left arm and hand, described as tingling. The Veteran reported numbness; however, there was no corresponding impression or diagnosis. November 2014 imaging of the neck resulted in an impression of straightening of the cervical spine and mild degenerative osteoarthritis with narrowing of the fifth and sixth interspaces. This resulted in an assessment of chronic neck pain with DDD. At his December 2014 hearing the Veteran reported that he experienced left sided weakness and pain, with numbness in his left arm that moved to his hands and fingers. VA treatment records from June 2015 show that the Veteran denied radicular pain. September 2015 treatment records showed the Veteran experienced chronic neck pain with DDD. Following February 2015 remand, the Veteran was afforded a September 2015 VA examination. Diagnosis was of cervical strain with C5-C6 degenerative disc disease. The examiner opined that the in-service knee injury did not result in the cervical spine condition. The Veteran's cervical spine symptoms began in 2006, well after service, and since 2006 there were degenerative developments, which were aging changes, possibly related to a 2006 incident but definitely not related to service. Further, the examiner opined that the Veteran's left and right knee conditions had no bearing on any neck condition. The examiner reasoned that the knee conditions began long before any onset of neck pain. There was also no reason to believe the Veteran's neck pain was aggravated by his knees, to include the limp favoring the left knee and progression of degenerative disc disease since 2006. Consideration has of course been given to the Veteran's assertions that his claimed cervical disability had its onset in service as a result of injuries. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the process of diagnosing a cervical disability and determining its cause, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In other words, the Veteran is competent to give evidence about what he sees and feels (e.g., to report that he had chronic neck pain and numbness in his left arm). However, his contentions as to the etiology of his claimed disorder is of limited probative value under the circumstances. The Veteran is not competent to diagnose cervical strain, chronic cervicalgia, degenerative changes, straightening of the cervical spine and mild degenerative osteoarthritis with narrowing of the fifth and sixth interspaces, or left upper extremity neuropathy, or to opine on the relationship between his in-service complaints and current disabilities. Such assessments are not simple in nature and in this case, require specialized training for a determination as to diagnosis and causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and determining causal connections for such disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). This lay evidence does not constitute competent evidence and lacks probative value to establish a nexus. Moreover, the Veteran has not established that he has experienced continuous neck pain since his military service, only believing instead there must be some correlation between this condition and his military service- in effect, by logical deduction- because he was treated for a knee injury from an in-service fall, which may have affected his neck. But this leap would require ignoring that the Veteran did not report any such difficulties at that time or upon separation examination and the significant lapse in time between service and post-service medical treatment. So in this case, the Board finds that the Veteran's statements regarding a relationship between his in-service fall and injury and his current cervical disability is not sufficient to overcome the evidence of record weighing against such a relationship. Jandreau, 492 F.3d at 1377; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). Accordingly, the preponderance of the evidence is against service connection for a cervical spine disability, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). The Veteran has essentially centered the claim of service connection for left upper extremity neuropathy on establishing service connection for a cervical spine disability. However, service connection for this disability has been denied. Because there is no predicate disability upon which secondary service connection may be granted, this argument does not provide a basis for a grant of service connection. See 38 C.F.R. § 3.310. Consequently, there is no legal basis to grant service connection for left upper extremity neuropathy. As there is a lack of entitlement under the law, the application of the law to the facts is dispositive. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). With regard to whether the evidence establishes a direct connection between the Veteran's service and his development of reported upper left extremity neuropathy, the Board notes that there is an absence of medical evidence establishing that the Veteran suffers from left upper extremity neuropathy. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). There is no objective medical evidence that the Veteran has been currently diagnosed with left upper extremity neuropathy. The Board has examined the entire record, to include service treatment records and post-service clinical records and in spite of reported symptoms of left arm numbness and tingling, repetitive testing has shown no left upper extremity neuropathy or radiculopathy. As such, the most probative, competent medical evidence suggests that the Veteran does not have left upper extremity neuropathy despite his reported symptomatology. As the Veteran has not shown a current disability for which service connection can be granted, the claim for service connection for left upper extremity neuropathy must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that the U.S. Court of Appeals for Veterans Claims (Court) has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because left upper extremity neuropathy was not diagnosed at any time since the claim was filed, and the most probative evidence is against finding the presence of the claimed disorder, no valid claim for service connection has been established. Based on this evidentiary posture, service connection cannot be awarded. As the preponderance of the evidence is against the claim for service connection for left upper extremity neuropathy, it must be denied. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected knee degenerative osteoarthritis was assigned a 10 percent disability rating each for the right knee and the left knee according to Diagnostic Code (DC) 5010, which provides that traumatic arthritis is rated as for degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. DC 5260 provides a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion of the leg is limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Full range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2015). DC 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. A claimant who has arthritis or limitation of motion and instability of a knee, may be rated separately under DCs 5003 and 5257. Any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). Separate ratings under DC 5260 for limitation of flexion and DC 5261 for limitation of extension, may be assigned for disability of the same knee; however, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss. 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal; (b) More movement than normal; (c) Weakened movement; (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, are related considerations. 38 C.F.R. § 4.45. January 2007 left knee magnetic resonance imaging impression was of severe degenerative thinning and medial meniscus tear, component of osteoarthritis of the medial compartment of the knee, and questionable integrity of the anterior cruciate ligament, with moderate osteoarthritis of the lateral compartment and moderate joint effusion. In March 2007 the Veteran reported experiencing recurrent buckling, locking, and swelling of his knee. He was observed to limp over his left leg. April 2007 VA treatment records referenced severe degenerative joint disease of the left knee. At a May 2010 VA examination of the left knee the Veteran reported wearing a brace when walking more than a short distance or with pain. Range of motion testing was from 0 to 120 degrees on the left knee, and 0 to 140 degrees on the right knee. At a February 2011 VA examination of the left knee there was moderate instability of the medial and lateral collateral ligaments. There was, however, no subluxation. Anterior and posterior cruciate ligaments stability test was abnormal. There was edema, instability, effusion and tenderness. The left knee showed no signs of abnormal movement, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage. Examination of the right knee revealed no locking pain, genu recurvatum or crepitus. Examination of the left knee revealed crepitus. There was no genu recurvatum, locking pain or ankylosis. Range of motion of the left and right knee was from 0 to 140 degrees, with no additional limitation from pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. At a VA examination in March 2013 the Veteran's gait was normal. June 2013 VA treatment record indicated that the Veteran had severe osteoarthritis of his left knee, and that he wore a left knee brace. VA treatment records show that in February 2014 the Veteran's right knee was stable. His left knee had varus deformity, laxity and crepitus. In July 2014 records show that the Veteran experienced occasional left knee swelling. He had tricompartmental degenerative changes with bone on bone to medial compartment, chondrocalcinosis. July 2014 physical therapy provided the Veteran gait instruction and a bariatric single point cane. November 2014 impression was of degenerative osteoarthritis with narrowing of the medial compartment. VA treatment records from May 2015 indicate that the Veteran walked with a limp favoring his left knee, and wore a left knee brace. By August, treatment records indicate that there was left knee improvement after wearing the knee brace. In September 2015 the Veteran reported that his left knee pain began with his in-service injury in 1977, and worsened over time. Diagnosis was of posttraumatic osteoarthritis, ACL deficient knee, and chrondrocalcinosis. Following February 2015 remand, the Veteran was afforded a September 2015 VA examination. The examiner reviewed the Veteran's medical history for his knee, to include the November 2014 orthopedic consultation in which range of motion was from 0 to 120 degrees, and there was abnormal Lachman with varus deformity that corrects. It was considered that there was an anterior cruciate ligament deficient knee with X-rays showing chrondrocalcinosis within the meniscus, and a cortisone injection was provided. Prior to that, October 2006 X-ray had shown mild subluxation medially of the left knee with the medial femoral condyle being subluxated medially .5 centimeters, and moderate medial compartment joint space narrowing of the left knee. A later 2010 X-ray showed complete loss of the medial joint space with medial subluxation of the femur on the tibia of 1 centimeter, such that there was progression of the medial compartment osteoarthritic change. The Veteran was given a knee injection and left knee brace, that helped decrease his pain and provided stability. The Veteran reported that he used a cane since 2008, walked stairs one at a time, experienced left knee stiffness when he first stood, and had increased pain with cold weather. The Veteran reported that since wearing the left knee brace in 2008, he had not experienced right knee pain in the previous few years. Examination revealed the Veteran used a cane in his right hand; wore an unloader brace of the left knee; and limped favoring the left lower extremity. His gait was stiff-legged with the brace, and there was a slight varus thrust of the left knee during weightbearing while walking. Right knee range of motion was from 0 to 140 degrees, with no pain, weakness, fatigability, lack of endurance, or incoordination. Left knee range of motion was from 0 to 135 degrees with pain at 135 degrees of flexion. There was no incoordination or history of fatigability or lack of endurance. There was a history of functional loss of the left knee. Left knee demonstrated less movement than normal, weakened movement and fatigability with no incoordination. There was no swelling; however, there was soft tissue and bony thickening of the left knee due to prominence of the lateral tibial plateau because of medial subluxation of the femur on the tibia, presenting deformity as would be visualized. There was slight atrophy of the thigh and left calf. There was instability on station due to varus thrust and slight varus alignment of the left knee with disturbance of locomotion and interference with sitting, standing and weightbearing. There was no tenderness present on palpation of either knee. Medial and lateral instability testing was 2+ valgus laxity of the left knee in full extension and in 30 degrees of flexion. For the right knee, stability tests were negative. There was normal alignment and tracking of the patella with no subluxation. There were no meniscal injuries. There was no joint effusion or crepitus of either knee. November 2014 X-rays were reviewed to include right knee normal alignment; joint space narrowing; and slight calcification on the medial and lateral menisci, which were considered to be changes of aging with no clinical significance. For the left knee, there was severe loss of the medial joint space, medial subluxation of the femur on the tibia, soft tissue calcification, medial osteophytes and erosion of the medial facet of the patella. As such, diagnoses were of medial compartment and patellofemoral osteoarthritis with anterior cruciate ligament deficiency and medial subluxation of femur on tibia with instability; and no current symptoms or pathology present of the right knee. The examiner observed that symptoms of pain, weakness, and fatigability were present with the left knee, and with repeated use would alter flexion; however, the degree to which the change would occur could not be estimated due to lack of documentation in the record and lack of information from the Veteran during the examination. The examiner opined that the Veteran's instability was moderate to severe. There were no symptoms of locking, and no findings of effusion; however, pain was present, and the Veteran wore a left knee brace. Here, the Veteran is in receipt of 10 percent ratings for his left and right knees based on painful motion, and a 20 percent rating for moderate instability of his left knee prior to September 26, 2015, and a 30 percent rating thereafter. The Veteran was awarded a 30 percent rating for left knee instability since September 26, 2015, which is the maximum schedular evaluation for instability. As such, the Veteran is not entitled to any higher schedular rating for his left knee instability under DC 5257. Here, disposition of the claim is based on the interpretation of the law, and not the facts of the case, and the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430. In addition, considering the evidence prior to September 26, 2015, a rating in excess of 20 percent for instability of the left knee is not warranted. The evidence showed instability and use of a brace; however, in February 2011 the VA examiner described the instability as moderate. The left knee instability was first described as moderate to severe in the September 26, 2015 VA examination, and there is no evidence to support finding moderate to severe instability prior to that date. With regard to the Veteran's evaluation for arthritis of the right knee, the Board finds that the evidence of record does not support an evaluation higher than 10 percent. The Veteran's range of motion for this knee throughout the appeal period does not meet the criteria for a compensable rating greater than 10 percent, and there is no basis for a separate rating for instability for the right knee. Moreover, the Board has also considered whether the Veteran is entitled to a higher rating or separate rating on the basis of functional loss and/or impairment, under 38 C.F.R. §§ 4.40, 4.45, 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995), Burton v. Shinseki, 25 Vet. App. 1 (2011), for his right knee. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher or separate disability rating when the evidence demonstrates functional loss due to limited or excessive movement, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. Id. Here, the Veteran's functional loss included pain, weakened movement and less movement than normal. Such manifestations are considered in the currently assigned 10 percent rating. Thus additional compensation for these right knee symptoms is not appropriate. Here, the Veteran's range of motion far exceeded what was required to warrant a rating in excess of that currently assigned. Thus, a rating greater than 10 percent for right knee arthritis is not warranted. With regard to the Veteran's left knee arthritis, range of motion testing does not warrant a rating greater than 10 percent under the applicable diagnostic codes governing extension and flexion of the knee. 38 C.F.R. 4.71a, DCs 5260, 5261. However, in reviewing the evidence, the Board finds that additional compensation is warranted for functional loss in connection with the Veteran's left knee. Treatment records and examinations consistently find difficulty with weight bearing, the required use of assistive devices such as braces and a cane, as well as a clear antalgic gait on locomotion. As a result of the functional loss demonstrated by the Veteran's left knee, the Board finds that a 20 percent evaluation is warranted for the entirety of the appeal period. Individual unemployability At his December 2014 Board hearing the Veteran reported that he had been unable to work in his home remodeling business because his left knee caused him pain and limited him physically. Indeed, in September 2015 the VA examiner opined that the Veteran's left knee condition produced marked interference with the Veteran's ability to be employed in gainful employment, other than completely sedentary work. VA will grant a total disability rating based on individual unemployability when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the scheduler rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is now in receipt of a 30 percent rating for left knee instability associated with osteoarthritis of the left knee since September 26, 2015, and a 20 percent rating from February 26, 2011; a 20 percent rating for degenerative osteoarthritis of the left knee; a 10 percent rating for degenerative osteoarthritis of the right knee associated with degenerative osteoarthritis of the left knee; and, a 10 percent rating for tinnitus. The combined disability evaluation is therefore 60 percent with the bilateral factor from February 26, 2011. That is, at all times during the appellate term, the Veteran does not meet the scheduler requirements for a total disability evaluation based on individual unemployability due to service connected disorders under 38 C.F.R. § 4.16(a). When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, individual unemployability benefits may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. § 4.16(b). The Board cannot award a total disability rating based on individual unemployability in the first instance because 38 C.F.R. § 4.16(b) requires that the issue first be submitted to the Director, Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the RO did not submit the issue to the Director, Compensation Service, finding that the evidence did not show such an exceptional or unusual disability picture. In the present case, the Veteran has worked in home remodeling and repair, and has at least a high school education. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, with consideration of his work history and education level, and not whether the veteran can find employment. See 38 C.F.R. 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based on individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. There is lay and medical evidence that the Veteran is limited due to his service-connected disabilities. There is no medical evidence, however, that the Veteran is unable to secure and follow at least some form of substantially gainful occupation solely due to his service-connected disabilities alone. The 2015 examiner opined that even with the interference of the left knee disability, the Veteran was able to perform sedentary work. The Veteran has made credible statements regarding his symptoms. However, there is no evidence to refute the contention that the Veteran can perform sedentary work even with his knee disabilities. In sum, the most probative evidence shows that the service-connected disabilities do not preclude gainful employment. As such, the evidence does not present such an exceptional picture that referral for extraschedular consideration of a total disability rating based on individual unemployability is warranted. In light of the foregoing, referral for consideration of entitlement to a total disability rating based on individual unemployability on an extraschedular basis is not warranted. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107. ORDER Service connection for a cervical spine disability is denied. Service connection for left upper extremity neuropathy is denied. Entitlement to a rating greater than 20 percent for left knee instability prior to September 26, 2015 is denied. Entitlement to a rating greater than 30 percent for left knee instability since September 26, 2015 is denied. Entitlement to a rating of 20 percent for left knee arthritis is granted for the entirety of the appeal period. Entitlement to a rating greater than 10 percent for right knee arthritis is denied. Entitlement to a TDIU is denied. REMAND Lumbar Spine Pursuant to the February 2015 Board remand, a September 2015 VA examination of the lumbar spine was afforded the Veteran. The examiner opined that the Veteran's history with regard to low back pain presents a history suggesting low back pain over the years secondary to aging changes of the lumbar spine. Based upon the history that the Veteran gives, as well as records review, which state that the Veteran's description of current low back pain is compatible with his current findings and that these are age related and not in any way related to a fall in service, the examiner opined that the low back condition was not related to service. The examiner failed to address whether the Veteran's low back condition was caused or worsened by his service-connected knee disabilities. As such, the examiner's opinion is not adequate, and remand is necessary. In the present case, the 2015 VA examiner indicated that the Veteran's left knee disability caused marked interference with his employment. Given this evidence, the Board finds that referral to the Director of Compensation Service for extraschedular consideration is warranted in connection with the Veteran's left knee disability. Accordingly, the Board has determined that a remand is appropriate so that the RO can refer this issue for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion as to the etiology of the Veteran's lumbar spine disability from a qualified VA medical professional. An examination should only be scheduled if the medical professional deems it necessary. The VA medical professional should review the Veteran's claims file and determine whether it is at least as likely as not (a 50 percent probability or greater): (a) that the Veteran's lumbar spine disability is related to his military service; or (b) that the Veteran's lumbar spine disability was caused by his service-connected left or right knee disabilities, or (c) that the Veteran's lumbar spine disability was aggravated (chronically worsened) by his service-connected left or right knee disabilities. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If an opinion cannot be provided without resorting to mere speculation, then a detailed medical explanation as to why causation is unknowable must be provided. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. The RO should refer the Veteran's left knee disability to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for a determination as to whether it renders the schedular evaluations inadequate given the 2015 examiner's assertion that it causes marked interference with employment. 3 Then, readjudicate the service connection issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs