Citation Nr: 1802685 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-18 640A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent thereafter for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for healed medical collateral ligament tear and degenerative joint disease (DJD), left knee. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran had active service from June 1987 to June 1990 and January 1991 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. A hearing on these matters was held before a Veterans Law Judge who has since retired on September 2015. A copy of the hearing transcript has been associated with the file. The Veteran was given the opportunity to appear for another Board hearing, but declined by way of correspondence received in November 2017. In November 2015, the Board remanded these claims for additional development. The Board finds that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271. 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. Prior to April 30, 2015, the Veteran's DDD of the lumbar spine has been manifested by findings no greater than reports of pain and muscle spasms; forward flexion of the thoracolumbar spine zero to 70 degrees, with pain; extension zero to 18 degrees; right lateral flexion zero to 15 degrees with pain; left lateral flexion zero to 15 degrees with pain; right lateral rotation zero to 15 degrees with pain; and left lateral rotation zero to 15 degrees with pain. Neither incapacitating episodes, nor neurological disabilities associated with the low back DDD has been shown. 2. From April 30, 2015, the Veteran's DDD of the lumbar spine has been manifested by findings no greater than reports of pain and muscle spasms; forward flexion of the thoracolumbar spine zero to 45 degrees, with pain; extension zero to 10 degrees with pain; right lateral flexion zero to 25 degrees with pain; left lateral flexion zero to 25 degrees with pain; right lateral rotation zero to 45 degrees with pain; left lateral rotation zero to 45 degrees with pain. Neither incapacitating episodes nor neurological disabilities (other than the left lower extremity radiculopathy and right lower extremity radiculopathy from November 8, 2016) have been shown to be associated with the low back DDD. 3. The Veteran's left knee disability is manifested by pain on motion with degenerative arthritis as shown by x-ray evidence; however, range of motion has not been limited in flexion to 30 degrees or less at any time during the appeal period. Instability, subluxation, or limitation of extension has not been shown. CONCLUSIONS OF LAW 1. Prior to April 30, 2015, the criteria for an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine have not been met or approximated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes (DC) 5242 (2016). 2. From April 30, 2015, the criteria for an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met or approximated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.71a, DC 5242 (2016). 3. A rating in excess of 10 percent for DJD, left knee, is denied. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. 3.159, 3.321, 4.3, 4.7, 4.10, 4.71a, DC 5010-5260 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify VA's duty to notify was satisfied by a July 2009 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014). 38 C.F.R. § 3.150 (2016); see also Scott v. McDonald, 789 F. 3d (Fed.Cir. 2015). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. See 38 U.S.C.A. § 5102A(a)(1) (West 2014); 38 C.F.R. § 3.159(c) (2016). Service treatment records, post-service VA treatment records, and lay statements have been associated with the claims file. VA must provide a medical examination or obtain a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5102A(d) (West 2014); 38 C.F.R. § 3.159(c)(4)(2016). The Veteran was afforded VA examination in October 2009 and April 2015, which is adequate for adjudication purposes. A medial addendum opinion was obtained in May 2017. Therefore, the Board finds that an additional medical examination or opinion is not necessary to decide the Veteran's claim. The Veteran has not identified any additional relevant evidence, nor does the record otherwise indicate that there is outstanding relevant evidence to obtain. During the hearing, the VLJ clarified the issues, explained the pertinent legal concepts, and determined that there was no outstanding evidence. The actions of the VLJ comply with 38 C.F.R. § 3.103. Accordingly, the Board finds that the VA has met its duty to assist and will address the merits of the claim. II. Increased Ratings, in General The Veteran asserts that his lumbar spine and left knee disabilities should be rated higher than the currently assigned disability ratings. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509- 10(2007) (holding that staged ratings may be warranted in increased rating claims). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102 , 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Degenerative Disc Disease Of The Lumbar Spine. The Veteran's service-connected lumbar spine disability, which includes DDD, has been evaluated as 10 percent disabling, pursuant to Diagnostic Code (DC) 5242. DC 5242 pertains to degenerative arthritis, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5242. As noted above, the service-connected lumbar disability encompasses DDD, which may be rated under the General Rating Formula, or the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever results in the higher rating. 38 C.F.R. § 4.71a, DC 5243. Under the Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5242. Under the General Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). Prior to April 30, 2015 In October 2009, the Veteran was afforded a VA examination. The Veteran reported that he had pain in his lower back all day. He indicated that the pain was worse during the night. He reported that pain would radiate down to both of his legs. Range of motion (ROM) testing showed that the thoracolumbar spine had a forward flexion to 70 degrees, extension to 10 degrees, side bending to 25 degrees to the left and right, and rotation to 45 degrees to left and to right. There was pain throughout each ROM; however, there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or lack of coordination following repetitive testing. There was diffuse lumbar spine tenderness to palpation but there was no spasm. The straight leg raising sign was negative. There was full strength and normal, symmetric deep tendon reflexes in both lower extremities. The Veteran had a slow gait X-rays revealed a decreased in disc height at L5-S1 but were otherwise normal. The examiner's assessment was DDD of the lumbar spine. Based on the above, the Board finds that the criteria for an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine under DC 5242 has not been met. As demonstrated by the October 2009 VA examination report, there is no probative evidence that the Veteran's lumbar spine disorder was ever manifested by forward flexion of the thoracolumbar spine limited to no more than 60 degrees; or combined range of motion of the thoracolumbar spine no greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. There was also no probative evidence of ankylosis in the thoracolumbar spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, to warrant any higher rating. Therefore, a higher, 20 percent disability rating is not warranted. From April 30, 2015 In April 2015, the Veteran was afforded a VA examination. On the ROM testing of the lumbar spine showed 40 degrees of flexion, 20 degrees of extension, 25 degrees of right lateral flexion, 20 degrees of left lateral flexion, 30 degrees of right lateral rotation, and 30 degrees left lateral rotation. Pain was noted, but there was no evidence of further additional loss of motion on repetitive testing. The examiner noted that pain, weakness, fatigability, or incoordination would limit your functional ability with repeated use over time or during periods of flares, but could not provide additional range of motion loss because the examination was not conducted under these conditions. The examiner indicated that there was localized tenderness and guarding. In November 2016, the Veteran was afforded another VA examination. On ROM testing of the lumbar spine showed forward flexion of 45 degrees, extensions of 10 degrees, 15 degrees of right lateral flexion, 15 degrees of left lateral flexion, 15 right lateral rotation, and 15 degrees of left lateral rotation. Pain was objectively demonstrated on examination; however, his ROM was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. Pain on weight bearing was observed and he demonstrated localized tenderness or pain to palpation to the thoracolumbar spine. There was no evidence of pain on passive ROM testing. There was no evidence of pain with non-weightbearing. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or with flare ups because the examination was not conducted under these conditions. There was no objective evidence of guarding or muscle spasms of the thoracolumbar spine on examination. The Veteran did not have ankylosis. The examiner commented that his thoracolumbar spine condition negatively impacts your ability to perform such tasks as sitting, walking, standing, and lifting. His gait was abnormal and he was completely dependent on a cane. He required assistance to get dressed every day. He further noted that the Veteran had to take pain medication and muscle relaxers through each day for the pain and spasms. Based on the above, the Board finds that the criteria for an initial disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine under DC 5242 were not been met. As demonstrated by the April 2015 and November 2016 VA medical examination reports a higher evaluation of 20 percent is not warranted. In that regard, the Board notes that the evidence of record does not show forward flexion to 30 degrees or less, favorable ankylosis, or incapacitating episodes lasting at least 4 weeks but less than 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a , DC 5242, 5243. Rather, flexion ranged from being full to limited to 40 degrees, with no additional limitation of motion upon repetition. Even considering additional functional loss such as flare-ups, the service-connected lumbar spine disability does not more nearly approximate the next highest level, as there was full muscle strength. Furthermore, there was no evidence of ankylosis, or incapacitating episodes lasting at least 4 weeks but less than 6 weeks during the past 12 months. The Board also finds that the service-connected lumbar spine disability has never been manifested by complaints or objective findings or functional impairment that would warrant a rating in excess of 20 percent. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. The Board has considered the Veteran's complaints of low back pain and reported limits, as well as potential additional limitation of functioning resulting therefrom. On the VA examination in 2015, the Veteran reported having flare-ups every night, and he had objective evidence of pain following repetitive lumbar motion noted, but no additional limitations after 3 repetitions of range of motion. On the VA examination in 2016, the Veteran again reported having flare-ups, and the examiner noted that the Veteran's pain on flexion and extension and weight bearing caused functional loss, but also noted that the Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner found that pain significantly limited the Veteran's functional ability with repeated use over a period of time and with flare-ups. While the Veteran has reported having flare-ups and has clearly experienced functional loss due to pain, there is insufficient objective evidence to conclude that his back pain and other back symptoms have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent. 38 C.F.R. §§ 4.40, 4.45, 4.59; and DeLuca v. Brown, supra. The Board has also considered whether a separate rating is required for any neurological component of the Veteran's lumbar spine disability, under 38 C.F.R. § 4.71a , General Rating Formula, Note (1). In a July 2017 rating decision, the RO granted service connection for left lower extremity radiculopathy and right lower extremity radiculopathy with an evaluation of 10 percent or each lower extremity, effective November 8, 2016. The Veteran did not thereafter disagree with the ratings or effective dates assigned for those disabilities. The Board further finds that although muscle spasms were noted, no atrophy has been noted, and the Veteran has denied bladder/bowel impairment or any other neurological deficits. Accordingly, a separate compensable rating for neurological manifestations of the service-connected lumbosacral disability is not warranted for any disabilities other than the left and right lower extremity radiculopathy. The Board has also considered whether other diagnostic codes are applicable to the Veteran's lumbar spine disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). However, there are no relevant diagnostic codes that would be applicable to his disability. In summary, although the Board is truly sympathetic to the Veteran's concerns, as discussed above, schedular evaluations for degenerative joint disease and osteoarthritis are based on application of the Rating Schedule to the symptoms demonstrated based on the evidence of record. As such, the Board concludes that the evidence of record is against the Veteran's claim of entitlement to an initial rating in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent thereafter for DDD of the lumbar spine. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107 (b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). III. Degenerative Joint Disease DJD of the Left Knee. The Veteran contends that his left knee disability should be rated higher than 10 percent. DC 5260 provides ratings based on limitation of flexion of the leg, where flexion limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and, flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. Moreover, arthritis due to trauma under DC 5010 substantiated by x-ray findings is rated as degenerative arthritis under DC 50030. 38 C.F.R. § 4.71a, DC 5003. DC 5003 (arthritis, degenerative) provides that if degenerative arthritis is established by x-rays, then the disability is rated under the appropriate DC for the specific joint limitation of motion. When the rating of a specific joint is noncompensable under the DCs pertaining to limitation of motion, a rating of 10 percent is for application for involvement of 2 or more major joints or 2 or more minor joint groups affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In October 2009, the Veteran was afforded a VA examination. The Veteran reported that he had pain all day every day. He reported that his knee had occasional locking, instability, and swelling. The ROM testing showed from full extension 0 degrees to 103 degrees of flexion. There was pain throughout ROM; however, no additional limitation was due to pain, fatigue, weakness, lack of endurance, or lack of coordination following repetitive testing. There was no warmth, redness, swelling, or crepitus of the left knee. There was mild tenderness to palpation over the patella and lateral compartment. The anterior/posterior drawer testing, McMurray's test, and Lachman's tests were all normal. The Knee was stable to varus/valgus stressing. The X-rays showed the knee was normal. A MRI of the knee revealed an old, healed medial collateral ligament tear, a small osteochondral defect of the femoral condyle, and mild DJD of the left patellofemoral joint. The Veteran was diagnosed with a healed medial collateral ligament tear and DJD of the left knee. In April 2015, the Veteran was afforded a VA examination. The Veteran reported that he had decreased weight-bearing tolerance. On the ROM testing of the left knee showed 90 degrees of flexion and 0 degrees of extension. The examiner noted that there was pain; however, there was no evidence of further additional loss of motion on repetitive testing. The examiner noted that pain, weakness, fatigability, or incoordination would limit his functional ability with repeated use over time or during periods of flares, but could not provide additional range of motion loss because the examination was not conducted under these conditions. There was no objective evidence of instability on testing. There was no objective evidence of crepitus. The Veteran did not have ankylosis. In November 2016, the Veteran was afforded a VA examination. The Veteran reported that he was in constant pain and undergone corticosteroid injection regularly. He reported that he had difficulty standing, sitting, and walking. On the ROM testing of the left knee showed 140 degrees of flexion and zero degrees of extension. Pain was noted on the examination and there was evidence of pain on weight bearing. The examiner indicated that there was pain noted during the examination however, it did not result in/cause a functional loss. There was evidence of pain with weight bearing and evidence of crepitus. The examiner indicated that there was tenderness along the anterior of the lateral knee. The Veteran was able to perform repetitive use testing with at least three repetitions and there was not any additional functional loss or ROM. The examination was not done during a flare-up. The Veteran did not have muscle atrophy are ankylosis. The Veteran did not have any shin splints. The examiner noted that that the Veteran's left knee condition negatively impacted his ability to perform. In May 2017, the examiner provided a medical addendum opinion. The examiner commented that the Veteran's knee condition limited his ability to perform occupational tasks that involved walking, standing, and sitting for prolonged periods of time. She noted that the Veteran had no evidence of pain on passive range of motion testing. He did not have evidence of pain when the joint was used in non-weight bearing. She noted that it was medically feasible to test the joint. Based on the foregoing, the Board finds that the Veteran's left knee disability manifested with degenerative arthritis, as shown by x-ray evidence; however, his knee has not been limited in flexion to 30 degrees or less at any time during the appeal period. His range of motion testing during the October 2009, April 2015, and November 2016 VA examinations did not show that the Veteran's knee would warrant an evaluation in excess of 10 percent. For example, his left knee disability has not resulted in flexion that is functionally limited to 30 degrees or less at any time. The Board has considered whether any additional DCs should be assigned to the Veteran's disability picture. While VA General Counsel has interpreted that separate ratings may be assigned under DC 5260 and DC 5261 (limitation of extension of the leg) for disability of the same joint where there is both compensable limitation of flexion and extension, the Board notes that the evidence of record does not show limitation of extension of 5 degrees or greater in any medical or lay evidence; thus, a separate rating for limitation of extension is not warranted in this case. See VAOPGCPREC 9-2004. Likewise, in addition to amounting to pyramiding, DC 5256 is inapplicable in this case because the medical and lay evidence of record does not show that the Veteran has ankylosis in his knees. While the Veteran indicated that his knee occasionally locked-up, all of the medical evidence, including the October 2009, April 2015, and November 2016 VA examination reports, shows that the Veteran does not have ankylosis. Moreover, there is no indication in the claims file that the Veteran is symptomatic due to semilunar cartilage removal (DC 5259), or that dislocated semilunar cartilage in the knees was causing frequent episodes of locking, pain, and effusion in the joint (DC 5258). Additionally, DC 5262 does not apply in the Veteran's case as the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. Likewise, on several occasions, range of motion testing revealed full extension to zero degrees and did not indicate the presence of any objective hyperextension. As the evidence in the record does not reflect that the Veteran has genu recurvatum, DC 5263 does not apply to his knee disabilities. Lastly, while separate ratings for DC 5260 and 5257 (impairment of the knee due to recurrent subluxation or lateral instability) would not amount to pyramiding, review of the evidence of record indicates that there is no instability or subluxation associated with the Veteran's left knee. See VAOPGCPREC 23-97, 9-98. Specifically, the Board has considered the Veteran's statement on his July 2011 VA form 9 that his knee locked up and he would lose balance. VA examination reports the clinical findings from the October 2009, April 2015, and November 2016 VA examination reports establish no instability following thorough medical examinations for his left knee instability. The Board accords more probative value to these medical professionals' findings than the lay statements of unstable knee. Accordingly, the Board concludes that the Veteran's left knee disability does not warrant ratings in excess of 10 percent at any time during the appeal period. As the preponderance of the evidence is against the Veteran's claims for increased ratings in excess of 10 percent for his left knee disability, the benefit of the doubt doctrine does not apply, and the claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.159; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to an initial rating in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent thereafter for DDD of the lumbar spine is denied. Entitlement to an initial rating in excess of 10 percent for healed medical collateral ligament tear and DJD, left knee is denied. REMAND The Veteran seeks entitlement to a total disability rating based upon individual unemployability (TDIU). The Board finds that further development is needed prior to the adjudication of the Veteran's claim of entitlement a TDIU. VA regulations provide for a TDIU rating when the schedular rating is less than total, where 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. 38 C.F.R. §§ 3.340, 4.16(a) (2016). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16 (a), may receive extraschedular consideration. See 38 C.F.R. § 4.16 (b). Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Id. The rating board will include a full statement as the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. In this case, the Veteran's service-connected disabilities include degenerative disc disease of the lumbar spine rated as 20 percent disabling, healed medial collateral ligament tear and degenerative joint disease, left knee rated as 10 percent disabling, left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine rated as 10 percent disabling, and right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine rated as 10 percent disabling. The Veteran has a total combined rating of 40 percent; therefore he does not meet the criteria under 38 C.F.R. § 4.16 (a). The April 2015 VA back examiner indicated that the Veteran was unable to secure gainful employment once he disclosed his physical limitations during the interviewing process. The examiner indicated that his back condition disturbed his locomotion, interfered with him sitting, and interfered with him standing. The April 2015 knee VA examiner commented that the Veteran reported that he has issues of maintaining gainful employment due to his knee pain. The examiner commented that the Veteran's knee condition limited him sitting, limited him walking, and limited him standing. In September 2015, the Veteran testified that he was unable to work due to his service-connected disabilities. He stated that he had constant spasms and the inability to stand erect. He testified that he could not bend down to put on his shoes and he could not stand for long periods to wash the dishes. He stated that he had instability in his knee. He stated that he was not able to climb up stairs or walk up inclines. The November 2016 VA knee examiner opined that the Veteran's left knee condition negatively impacted his ability to perform. The November 2016 VA lumbar spine examiner indicated that his condition negatively impacted his ability to perform tasks such as sitting, walking, standing, and lifting. Further, the examiner indicated that the Veteran had a severe back condition. During the examination, his gait was abnormal and he was completely dependent on a cane. He required assistance to get dress every day. The examiner commented that the Veteran took pain medication and muscle relaxers throughout each day for the pain and spasms. Although the Veteran does not currently meet the percentage threshold requirements for TDIU, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, if the Veteran does not meet the threshold criteria for TDIU and there is evidence of unemployability due solely to service-connected disability, then the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him a VA Form 21-8940 in connection to his claim for entitlement to TDIU, and request that he supply the requisite information. 2. Refer the Veteran's TDIU claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. 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). 3. Upon response, the RO must undertake any adjudicative actions necessary. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the Veteran's TDIU claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order. The appellant 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs