Citation Nr: 1800172 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 12-15 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a duodenal ulcer. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee. 3. Entitlement to a rating in excess of 10 percent for osteoarthritic changes and bony irregularity of the middle malleolus, right ankle (right ankle disability). 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1952 to February 1956 and from January 1957 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes the Veteran initially requested a Board hearing, but subsequently withdrew his hearing request in March 2015. This case was remanded by the Board in March 2016 so he could receive notice about his TDIU claim, so additional VA treatment records could be added, and for the Veteran to receive a VA examination for his right ankle and right knee disabilities. VA has a duty to substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes all of the Veteran's outstanding VA treatment records have been added to the Veteran's claims file. The RO sent a TDIU notice letter in November 2016. The Veteran received VA examinations in July 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to March 9, 2015, the Veteran's ulcer condition manifested as mild. 2. From March 9, 2015, the Veteran's ulcer condition manifested with continuous moderate manifestation. 3. The Veteran has slight instability of the right knee with arthritis confirmed by x-ray. 4. Prior to March 24, 2011, the Veteran's right ankle disability manifested as marked limitation of motion. 5. From March 24, 2011, the Veteran's right ankle disability manifested as moderate limitation of motion. CONCLUSIONS OF LAW 1. Prior to March 9, 2015, the criteria for an ulcer disability rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.114, Diagnostic Code 7305(2017). 2. From March 9, 2015, the criteria for an ulcer disability rating for 20 percent, but not higher, has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.114, Diagnostic Code 7305(2017). 3. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). 4. The criteria for a separate 10 percent rating for right knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 4.1-4.14, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5257 (2017). 5. Prior to March 24, 2011, the criteria for a right ankle disability rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2017). 6. From March 24, 2011, the criteria for a left ankle disability rating of 20 percent has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter sent in March 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The evidence of record includes the Veteran's Service Treatment Records (STRs), his private medical records, his VA treatment records, and the reports of his VA examinations. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received VA examinations in March 2009, March 2010, July 2016, and July 2017 for his disabilities. The Board finds these examinations were adequate as the examiners reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and provided detailed findings. Accordingly, the Board's duty to assist has been fulfilled. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Third, the Board must weigh the probative value of evidence in light of the entirety of the record. Increased Rating for Ulcers The Veteran's ulcers are rated under Diagnostic Code 7305, duodenal ulcer at 10 percent. Under this Diagnostic Code, a 10 percent rating is assigned where the disability is mild, with recurring symptoms once or twice yearly. A 20 percent rating is assigned where the disability is moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous, moderate manifestations. A 40 percent rating is assigned where the disability is moderately severe, which is less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent (maximum) rating is assigned when the disability is severe with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114 (2017). The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The Veteran's VA treatment records note his continued complaints of stomach pain and stomach problems. In March 2010, the Veteran received a VA examination. The VA examiner noted there was no trauma to his digestive system and there was no history of neoplasm or hernia/surgical repair. The Veteran did not have nausea, vomiting, or diarrhea. The VA examiner noted the Veteran did have constipation but it was controlled with medications. The VA examiner noted the Veteran's ulcers had no significant effects on his usual occupation, and no effect on his daily activity. The Veteran's most recent VA examination was in January 2016. The Veteran noted he was continuously on medication for his ulcer condition. Though the Veteran took medication for his abdominal pain, he had pain in the morning that lasted 2 to 3 hours and then it became a mild pain. The examiner noted that the Veteran's continuous abdominal pain occurred more than 4 times a year but the recurring episodes were not severe. The examiner found that the episodes lasted less than one day. He did not have incapacitating episodes. The examiner noted that he did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his ulcer. The examiner noted that the Veteran's ulcer did not impact his ability to work. In March 2016, the Veteran had an esophagogastroduodenoscopy (EGD) and it was documented that he had mild gastritis. Additionally, the evidence of record contains lay statements from the Veteran about his ulcer condition. In a March 9, 2015 statement the Veteran noted that he has stomach problems every day and has been in the hospital for his stomach condition. In a November 2016 statement, the Veteran noted that not only does his stomach hurt every day, but sometimes have to sit and wait for the pain to subside. The Board finds that an increase to 20 percent is warranted for the Veteran's disability. From the March 9, 2015 statement forward, the Veteran documented his daily stomach pain. The Board finds the Veteran is competent and credible to report his symptoms of pain due to his ulcer condition. The description of his daily stomach pain is consistent with what was noted in the January 2016 VA examination where the VA examiner noted the Veteran had abdominal pain every morning for 2 to 3 hours. However, prior to the Veteran's March 9, 2015 statement, the Board finds a 20 percent rating is not warranted. Prior to that statement there is no evidence the Veteran suffered from daily stomach pain or that his disability was shown to cause continuous moderate manifestations. The Board concludes the Veteran's disability does not warrant a rating higher than 20 percent beginning March 9, 2015. The Board notes the evidence of record does not suggest the Veteran has anemia or weight loss as a result of his ulcer condition. Additionally, the January 2016 VA examiner noted the Veteran did not have any incapacitating episodes. The Board finds the Veteran's disability picture is best captured by a 20 percent rating as his disability manifests as continuous moderate manifestations. Therefore, the Board finds the Veteran is entitled to a 20 percent rating effective from March 9, 2015. See 38 C.F.R. § 4.114 (2017). To this extent, the appeal is granted. Increased Rating for a Right Ankle Disability The Veteran's right ankle disability is rated under Diagnostic Code 5271, limited motion of the ankle. Under this Diagnostic Code a 10 percent rated is warranted with moderate limitation of motion and a 20 percent rating is warranted with marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 Plate II. When an evaluation of a disability is based upon 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 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran received a VA examination in March 2009. The VA examiner noted the Veteran's right ankle would occasionally hurt and swell depending on the type of activity he engaged in. The Veteran also occasionally wore an ace wrap. The VA examiner noted the Veteran did not have deformity, instability, and the ankle did not give way. The Veteran did have pain, stiffness, and weakness, but not incoordination. The Veteran also did not have daily episodes of dislocation or subluxation. He had moderate, weekly, hourly flare ups precipitated by prolonged walking and standing. The Veteran did not have additional loss of range of motion during a flare up. Further, the Veteran did not have any incapacitating episodes. The Veteran had pain with active motion, dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. He did not have pain with repetition and no additional limitation after repetition. The Veteran also received a VA examination in March 2010. The Veteran noted he had pain and swelling for 8 to 9 months and stated that his ankle was getting progressively worse. The Veteran used over-the-counter medication, a brace, and exercise to help with the pain. The Veteran did not have deformity and his ankle did not give way. He did have instability and pain. The Veteran did not have weakness, incoordination, dislocation, subluxation, or locking. The VA examiner noted the Veteran had warmth and tenderness, but the examiner noted the Veteran did not have flareups. The Veteran did not have objective evidence of pain with active motion; his dorsiflexion was to 5 degrees and his right plantar flexion was to 40 degrees. The Veteran had pain after repetitive motion but there was no additional loss of range of motion. The VA examiner noted the Veteran did not have ankylosis. The Veteran's most recent VA examination was in July 2017. The VA examiner noted the Veteran had flareups with swelling, pain, and stiffness. The Veteran experienced functional loss during flareups such as difficulty walking and standing for long periods. The Veteran's range of motion was dorsiflexion to 29 degrees and his plantar flexion was to 40 degrees. However, the Veteran's abnormal range of motion did not contribute to functional loss. The Veteran had no localized tenderness, pain on palpitation, or crepitus; however, the Veteran did have pain with weightbearing. The Veteran experienced additional loss in range of motion after repetition, his dorsiflexion was to 10 degrees and plantar flexion was to 35 degrees. Additionally, after repetition the Veteran experienced lack of endurance and pain. While not examined during a flareup, the examiner noted that pain and lack of endurance caused functional loss and that during a flareup the Veteran's dorsiflexion was to 5 degrees and his plantar flexion was to 25 degrees. The Veteran did not have reduction in muscle strength, muscle atrophy, ankylosis, instability, dislocation, or shin splints. The Veteran used a brace and walker. The VA examiner noted that there was no evidence of pain on passive range of motion or non-weightbearing activity. In addition to the medical documents documenting the Veteran's continued complaints of right ankle pain the evidence contained lay statements from the Veteran. In his November 2016 statement, the Veteran stated that he had trouble walking after a few steps and standing over a few minutes. Prior to March 24, 2011, the Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5271 is not warranted. In coming to this conclusion, the Board considers the VA examination from March 2009. At the March 2009 VA examination, the Veteran's plantar flexion was 0 to 45 degrees with pain and his dorsiflexion was 0 to 20 degrees. The Board notes that this range of motion is considered the standard range of motion. See 38 C.F.R. § 4.71 Plate II. The Veteran's dorsiflexion and plantar flexion ranges noted in the March 2009 VA examination are not more closely described as moderate limitation of motion. It is clear from the Veteran's competent, credible description of his symptoms and the medical evidence of record that there is limited motion and painful motion. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40 (2017). The medical evidence of record does not support a finding that the Veteran has functional loss in his left ankle due to his disability such that a 20 percent rating under Diagnostic Code is more closely approximated prior to March 24, 2011. His VA examination and VA medical records noted that the Veteran suffered from pain and weakness, but there is no indication his pain led to functional impairment. The Veteran reported in several statements that his right ankle was worse with prolonged standing and walking. As previously noted, the Veteran's functional loss in the form of painful motion, weakness, stiffness, decreased endurance, and fatigability has been considered in the evaluation of his right ankle disability. The Board has also considered his reports of problems with prolonged standing and walking. However, even when considering these factors, the criteria for a 20 percent rating under Diagnostic Code 5271 for marked limited range of motion are not more closely approximated. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his left ankle disability does not equate to more than the disability picture contemplated by the 10 percent rating prior to March 23, 2011. 38 C.F.R. § 4.71a (2017). Prior to March 24, 2011, Diagnostic Codes 5272, 5273, and 5274 were not applicable because the Veteran does not have ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and had not undergone an astragalectomy. Furthermore, he retains motion in his ankle and therefore Diagnostic Code 5270, which contemplates ankylosis of the ankle, is not applicable. However, the Board finds an increase under Diagnostic Code 5271 to 20 percent from March 24, 2011, is warranted because his limitation of motion of the right ankle became marked. At his March 2011 VA examination, the Veteran's dorsiflexion was limited to 5 degrees, indicating that he had one quarter of normal dorsiflexion (20 degrees). Additionally, his plantar flexion was limited to 40 degrees. The VA examiner also noted that the Veteran suffered from instability. The Board considers the Veteran's competent and credible lay statements discussing how his right ankle disability had gotten progressively worse and he had pain and swelling for 8 to 9 months. Additionally, the Veteran's continued loss of range of motion was noted in his July 2017 VA examination. The VA examiner noted the Veteran experienced functional loss caused by pain and lack of endurance. The Veteran's flareups continued to cause swelling pain and stiffness. When considering the functional impairment caused by his right ankle disability along with the ranges of motion from his March 2011 VA examination and July 2017 VA examination, his disability is more closely described as marked limitation of motion. Therefore a 20 percent rating under Diagnostic Code 5271 is granted. This is the maximum rating available under Diagnostic Code 5271. The only Diagnostic Code that provides for a rating higher than 20 percent is Diagnostic Code 5270, ankylosis. 38 C.F.R. § 4.71a (2017). Under this Diagnostic Code a 20 percent rating is warranted when the plantar flexion is less than 30 degrees. Id. A 30 percent rating is warranted when the plantar flexion is between 30 degrees and 40 degrees, or dorsiflexion is between 0 degrees and 10 degrees. Id. A 40 percent rating is warranted when plantar flexion is more than 40 degrees or dorsiflexion is more than 10 degrees with abduction, adduction, inversion, or eversion deformity. Id. As described by both the medical and lay evidence, the Veteran retains mobility in his left ankle; he does not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore use of Diagnostic Code 5270 is not warranted. In summary, a 20 percent disability rating is granted for the Veteran's right ankle disability, effective March 24, 2011. Increased Rating for Right Knee Disability The Veteran's right knee is assigned a 10 percent rating under Diagnostic Code 5010, arthritis. 38 C.F.R. § 4.71a (2017). The RO assigned the 10 percent rating based upon painful, limited motion. 38 C.F.R. § 4.59. Under Diagnostic Code 5010, the disability is rated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2017). The Board will also consider other Diagnostic Codes that apply to limitation of motion for the knee, Diagnostic Code 5260 and Diagnostic Code 5261 for flexion and extension of the leg. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable percent rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2017). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2017). Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable percent rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a (2017). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2017). Furthermore, as this disability also concerns limitation of motion, the Board must consider any additional functional loss the Veteran may have sustained by virtue of other factors. The Board considers the same factors previously discussed relating to the Veteran's right ankle disability, more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca, 8 Vet. App. 202. The Veteran received a VA examination for his right knee in March 2009. The Veteran rated his knee pain as between a 4 to 5 out of 10. The Veteran noted he wore a knee brace, received cortisone injections, and used over-the-counter medication for his knee pain. The Veteran did not have deformity, instability, weakness, incoordination, episodes of dislocation or subluxation, or effusions. He reported giving way, stiffness, decreased speed of joint motion, and reported that his knee locked several times a year but less than monthly. The Veteran experienced moderate flareups that lasted for hours weekly. The Veteran's flareups were precipitated by prolonged walking and standing. The Veteran had pain with active motion, his flexion was to 135 degrees, and his extension was normal (0 degrees). The Veteran experienced pain after repetition but no additional loss in range of motion. In March 2010, the Veteran received a VA examination. The VA examiner noted the Veteran's right knee intermittently gave way causing him to go down. The Veteran reported his knee hurt even more than before and was getting progressively worse. The Veteran continued to use over-the-counter medication, a brace, and exercise for his knee pain. The VA examiner noted the Veteran had deformity, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and his knee gave way. The Veteran did not have dislocation, subluxation, or locking episodes. The Veteran did have repeated effusions, but the examiner noted there were no flareups. The Veteran had no pain with active motion, his flexion was to 110 degrees, and his extension was normal. The Veteran had pain with repetition and had additional limitation of range of motion; his flexion decreased to 105 degrees, and his extension remained normal. The Veteran's most recent VA examination was in July 2017. The examiner diagnosed degenerative joint disease. The VA examiner noted his flareups resulted in swelling, pain, and stiffness. The functional loss during the Veteran's flareups led to difficulty in walking and standing for long periods. The Veteran's range of motion was flexion to 120 degrees and his extension was normal at 0 degrees both with pain that contributed to functional loss. The Veteran also experienced pain with weightbearing testing. The Veteran had functional loss after repetition including pain and lack of endurance. The pain and lack of endurance limited his functional ability over time. His flexion was limited to 100 degrees, and his extension remained normal at 0 degrees. While the Veteran was not examined during a flareup the VA examiner noted that pain and lack of endurance contributed to functional loss, his flexion would be to 90 degrees, and his extension would be normal at 0 degrees. The VA examiner opined the Veteran did not have muscle atrophy, ankylosis, instability, or subluxation. The examiner found that the Veteran did not have meniscal conditions and did not have joint "locking" or joint effusion. The Veteran used a brace and walker. The Veteran did not have pain with passive range of motion or non-weightbearing testing. The Board also considers the Veteran's lay statements and other medical evidence of record documenting the Veteran's continued right knee complaints of pain. In November 2016, the Veteran stated that he had trouble walking and standing for long periods of time. The Veteran also said that his knee would not allow him to step up and down without pain. Separate ratings are available for limitations of flexion and limitations of extension under Diagnostic Codes 5260 and 5261. VAOPGCREC 9-2004 (2004). In this case, the Veteran's extension has been consistently normal, at 0 degrees. Although the Veteran reported knee pain, the medical evidence of record does not show limitation on extension. Even considering the Veteran's pain, his extension is not more accurately described as being limited to 5 degrees, which is required for a noncompensable disability rating under Diagnostic Code 5261. To warrant a compensable rating, his extension would need to be more closely described as limited to 10 degrees. Thus, the Board finds a rating under Diagnostic Code 5261 is not applicable. Similarly, at no point during the appeal period has the Veteran's flexion been more closely described as limited to 60 degrees. While the Board acknowledges limitation in his flexion has become worse over the years, at no point has his flexion been limited to 60 degrees which is necessary for a noncompensable disability rating. At worst, the July 2017 VA examiner estimated that it would be 90 degrees during a flare up. Moreover, the Board notes that x-ray evidence does confirm the diagnosis of arthritis. As the Veteran's range of motion for his right knee flexion does not warrant a compensable rating a 10 percent rating is warranted under Diagnostic Code 5010. The Board notes a higher rating is not warranted as the x-ray evidence does not involve two or more major joints or two or more minor joints with occasional incapacitating exacerbations. Therefore, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5010. It is clear from the Veteran's competent, credible description of his symptoms that there is limited motion and painful motion. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40 (2017). The evidence of record does not support a finding that the Veteran has functional loss in his right knee due to his disability such that a higher rating is more closely approximated. His VA examinations and VA medical records note that the Veteran's pain caused some functional impairment such as painful motion, less movement than normal, and lack of endurance. The Veteran reported in several statements that his knee is worse with prolonged standing and walking. Furthermore, the July 2017 VA examiner noted that the Veteran's pain and lack of endurance significantly limited his functional ability with repeated use over time. However, at the VA examinations in March 2009, March 2013, and January 2017, the examiners noted the Veteran's right knee was not additionally limited by fatigue, weakness, or incoordination. As previously noted, the Veteran's functional loss in the form of painful motion, weakness, stiffness, decreased endurance, and fatigability has been considered in the evaluation of his right knee disability. The Board has also considered his reports of problems with prolonged standing and walking. However, even when considering these factors, the criteria for a 20 percent rating are not more closely approximated. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his right knee disability does not equate to more than the disability picture contemplated by the 10 percent rating already assigned. 38 C.F.R. § 4.71a (2017). The Board must also consider other potentially applicable Diagnostic Codes for the Veteran's left knee disability. Under Diagnostic Code 5257, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2017). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board acknowledges the Veteran's statements discussing his right knee instability. The Veteran has reported using a brace for his right knee since March 2009. At his March 2010 VA examination, the Veteran stated his right knee would intermittently give out and cause him to go down. The Board notes the reports of the Veteran's instability have differed over the years. The March 2009 and July 2017 VA examiners noted there was no instability, but the March 2010 VA examiner noted the Veteran had instability. However, the medical evidence repeatedly shows the Veteran does not have subluxation. Based on the evidence of record the Board finds the Veteran's competent, credible lay statements show a 10 percent rating under Diagnostic Code 5257 is warranted. The Veteran has continually reported that he has used a brace to help with his knee and has reported that his right knee has given way causing him to fall. The Board finds the Veteran has slight instability. However, the Board determines that a higher rating is not warranted because the Veteran's examinations and medical records show that he does not have a diagnosis of recurrent subluxation and the Veteran's knee was stable upon clinical examination. At his July 2017 VA examination, his right knee was stable during all tests conducted. The record does not show that the Veteran has a meniscal condition. Therefore, a higher or separate rating under Diagnostic Code 5258, semilunar cartilage that is dislocated with frequent episodes of locking, pain, and effusion into the joint is not warranted. As for other potentially applicable Diagnostic Codes, the Veteran, does not have ankylosis, has not had removal of semilunar cartilage, there is no malunion of the tibia or fibula, and he does not have genu recurvatum. Therefore Diagnostic Codes 5256, 5259, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2017). For these reasons, an initial disability rating in excess of 10 percent for a left knee disability under Diagnostic Code 5010 is denied because the overall disability picture for the left knee does not more closely approximate the criteria for a higher rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.71a (2017). Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3 (2017). However, a separate 10 percent disability ratings under Diagnostic Code 5257 is granted. ORDER Prior to March 9, 2015, entitlement to a rating in excess of 10 percent for an ulcer disability is denied. From March 9, 2015, entitlement to a 20 percent rating for an ulcer disability is granted. Prior to March 24, 2011, entitlement to a disability rating in excess of 10 percent for a right ankle disability is denied. From March 24, 2011, entitlement to a 20 percent disability rating for a right ankle disability is granted. Entitlement to a rating in excess of 10 percent for a right knee disability under Diagnostic Code 5010 is denied. Entitlement to a separate 10 percent rating for right knee instability under Diagnostic Code 5257 is granted. REMAND Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular 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 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The Board acknowledges that the Veteran's combined disability rating has not met the schedular requirements for TDIU. The Veteran's combined rating is 30 percent and he does not have a single disability rated at least 60 percent. Nevertheless, the Board concludes the Veteran's employability picture warrants extraschedular referral. The Veteran's VA examinations all note the Veteran's service-connected disabilities preclude any type of employment that requires prolonged standing or walking. The Board notes specifically in the March 2010 VA examination the examiner noted the Veteran previously worked as a bell captain and barber but had to retire because he could no longer stand long enough to perform the job. The Veteran also discussed how he had to stop his duties as an usher at church because of his ankle and knee pain. For this reason, the Board finds that referral for consideration of an extraschedular TDIU is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Director of the Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. After completing this assessment and any other development deemed necessary, adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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. §§ 5109B, 7112 (2012). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs