Citation Nr: 1804969 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-26 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to February 3, 2009, and in excess of 20 percent as of February 3, 2009, for a low back disability. 2. Entitlement to a rating in excess of 10 percent for a right knee disability, to include entitlement to separate compensable ratings. 3. Entitlement to a rating in excess of 10 percent for a left knee disability. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from November 1982 to November 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A May 2012 rating decision by the RO in Albuquerque, New Mexico increased the low back disability rating to 20 percent, effective February 3, 2009. Despite the assignment of an increased rating, the full benefits sought have not been granted and the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in September 2015, and the issues currently on appeal were remanded for development. 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 February 3, 2009 the Veteran's low back disability exhibited a forward flexion of 80 degrees with mild pain starting at 70 degrees. Inspection of the thoracolumbar spine was normal. 2. Since February 3, 2009, the Veteran's low back disability manifested with range of motion to forward flexion of 55 degrees. There are no signs of guarding or an abnormal gait. 3. The Veteran's left knee tenosynovitis and patellofemoral syndrome has been manifested by painful motion of the knee with long periods of standing or walking. 4. The Veteran's right knee tenosynovitis and patellofemoral syndrome has been manifested by painful motion of the knee with long periods of standing or walking and a slight recurrent subluxation. 5. The Veteran experienced a meniscal tear in the right knee in 2009 and underwent a right knee meniscectomy in 2010, and he experiences continued pain and swelling in the right knee. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a low back disability prior to February 3, 2009, were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 20 percent for a low back disability as of February 3, 2009, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 5237 (2017). 3. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5274 (2017). 4. The criteria for a separate rating of 20 percent for a right knee disability from June 21, 2009 to June 17, 2010, under Diagnostic Code 5258 for torn meniscus are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5274 (2017). 5. The criteria for entitlement to a separate rating of 10 percent for a right knee disability as of June 18, 2010, but not earlier, under Diagnostic Code 5259 for meniscectomy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5274 (2017). 6. The criteria for entitlement to a separate rating of 10 percent for a right knee disability from May 24, 2016, but not earlier, under Diagnostic Code 5257 for recurrent lateral instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5274 (2017). 7. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5024 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. The Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran's entire history is reviewed when assigning ratings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (20167 Rating the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1994). However, concerning disabilities of the knee, separate ratings under Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same joint. VAOGCPREC 9-2004 (2004), 69 Fed. Reg. 59990 (2004). In addition, a claimant who has both arthritis and instability of a knee may be granted separate ratings under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional compensable disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2017). The provisions requiring consideration of pain and other functionally limiting factors should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017); Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. §§ 4.40, 4.45 (2017). Low Back Disability Prior to February 3, 2009 The Veteran contends that his lower back disability was productive of extreme pain, frequent debilitating flare-ups, and impacts his daily activities. More specifically, the Veteran asserts that the pain he experiences as a result of his low back pain was higher than what was contemplated by the assigned rating. He has stated that the flare ups occur as frequently as six times a week and impact his ability to sleep. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017). Normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V (2017). In a November 2007 VA back examination, the examiner noted that the Veteran did not have radiculopathy. The examiner also noted that the Veteran's range of motion measured as forward flexion of 80 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. The Veteran reported that his activities of daily living were mildly impacted in that he could not do continuous standing and bending or stooping positions. His occupational tasks which were essentially consulting and administrative were moderately impacted in that he had chronic pain in the low back which was aggravated by prolonged sitting and changing position to standing up. Recreational and sport activities that required running were severely affected. During the course of the appeal, the Veteran has competently and credibly reported experiencing low back pain, flare-ups, and radiating pain. His lay complaints are supported by objective evidence. The Board recognizes that the Veteran's functional effects present difficulty in the Veteran's daily life. However, the rating schedule was purposely designed to compensate for effects such as functional loss and impairment of the back due to the disability. The signs and symptoms of the Veteran of pain and limited motion, and their resulting impairment, are contemplated by the rating schedule. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2017). Thus, there is nothing exceptional or unusual about the disability. Despite the Veteran's reported symptoms, the record does not support a finding that his disability picture more nearly approximated that associated with a 20 percent rating prior to February 3, 2009. Specifically, there is no evidence of record indicating that the Veteran had flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The evidence also does not show that the combined range of motion of the thoracolumbar spine was not greater than 120 degrees; or that there were muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent rating prior to February 3, 2009. Accordingly, the Board finds that there is no basis for the assignment of a rating in excess of 10 percent prior to February 3, 2009. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low Back Disability as of February 3, 2009 In a February 2009 VA back examination, the Veteran reported that his low back condition had gotten progressively worse. The Veteran experienced flare ups every four to six weeks lasting at least one to three days. The Veteran also reported decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, and decreased strength impacting his daily activities. The examiner also noted that the Veteran's range of motion measured as forward flexion of 55 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The examiner noted that the Veteran had a mild antalgic gait. In a July 2013 VA back examination, the examiner noted that the Veteran's range of motion measured forward flexion of 45 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The Veteran reported that about twice a month his back pain increased to a level which required the use of a cane. He still experienced problems walking or standing for extended periods of time. In a September 2015 medical note, Dr. L.R. noted that the Veteran recently discontinued use of pain relievers due to the effect it was having on his liver. Subsequently, the Veteran began using acupuncture which assisted with bringing pain levels from a 10 on a scale of 1 to 10 down to a 2. Dr. L.R. recommended continued use of acupuncture every three weeks. In a May 2016 VA back examination, the Veteran reported that his low back pain was always present. The Veteran described the pain as radiating down his legs to the tips of his toes, with a flare up causing shooting and burning pain down his legs. The examiner noted that the Veteran's range of motion measured as forward flexion to 55 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner noted that while the Veteran had intervertebral disc syndrome, that disability has not caused incapacitating episodes in the past 12 months. There was no ankylosis of the spine. Despite the Veteran's reported symptoms, the record does not support a finding that his disability picture more nearly approximated that associated with a 40 percent rating as of February 3, 2009. Specifically, there is no evidence of record indicating that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Board notes that between the July 2013 and May 2016 VA back examinations, the Veteran's range of motion had improved. Nothing in the evidence of record indicates that thoracolumbar spine motion was limited to 30 degrees or less even when considering pain, flare ups, and other factors. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent as of February 3, 2009, for the low back disability. Accordingly, the Board finds that there is no basis for the assignment of a rating in excess of 20 percent as of February 3, 2009. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Knee Disability The Veteran contends that he is entitled to ratings in excess of 10 percent for right and left knee disabilities as his knees were productive of much pain after extended periods of walking or standing. The Veteran was initially awarded a 10 percent rating under Diagnostic Code 5003 based on limitation of motion of the specific joints involved that were noncompensable under the appropriate diagnostic codes. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation of motion diagnostic code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. Ratings assigned under Diagnostic Code 5003 cannot be combined with ratings for limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (2017). In February 2008 the RO recharacterized the knee ratings under Diagnostic Code 5260-5024. 38 C.F.R. § 4.71a (2017). Diagnostic Code 5260 provides that a 0 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 leg flexion is limited to 30 degrees. A percent is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II (2017). In a September 2003 VA knee examination, the examiner noted that the Veteran's range of motion measured flexion of 140 degrees and an extension of 0 degrees for both knees. There were no additional limitations of range of motion by pain, fatigue, weakness, lack of endurances, or incoordination. There was no ankylosis. X-rays of the bilateral knees showed degenerative osteoarthritis. The examination did not find any sign of recurrent subluxation, locking pain, joint effusion, or crepitus. The Veteran reported that his knees sometimes swelled and became painful with flare ups occurring every one to two months lasting up to two weeks. The pain had led to the need for a knee brace, reduced participation in sport activities, and caused occasional missed days of work. In a February 2009 VA knee examination, the examiner noted that the Veteran's range of motion measured flexion of 80 degrees and an extension of 0 degrees for both knees. There was no ankylosis. The Veteran reported stiffness, weakness, swelling, tenderness, frequent flare ups, and antalgic gait, but no locking episodes. The Veteran also reported the use of a cane, brace, crutches, and functional limitation with walking. Under general joint findings the examiner noted that there was no instability or meniscus abnormality. In a May 2016 VA knee examination, the examiner noted that the Veteran's range of motion measured flexion of 0 to 110 degrees and extension of 110 to 0 degrees for the right knee, and a flexion of 0 to 115 degrees and extension of 115 to 0 degrees for the left knee. The Veteran reported that his right knee burned with pain when he turned a certain way. The Veteran also stated that flare-ups happened five to eight times a month and last for a period of three days. Functional loss was reported as a result of pain in the knee. The examiner noted that the Veteran's bilateral knee pain was worse with prolonged walking and standing. He was unable to run due to knee pain. There was no ankylosis. There was slight recurrent subluxation in the right knee, but no subluxation in the left knee. There was no lateral instability in either knee. There is recurrent effusion in the right knee, but no recurrent effusion in the left knee. There was no recurrent dislocation or tibia or fibula impairment in either knee. There was no joint instability in either knee. The examiner noted that the Veteran had a meniscus condition resulting in a meniscectomy in 2013. The Veteran reported continued pain and swelling in the right knee. The Veteran reported a right knee scar that was neither painful nor unstable. After considering the above, the Board concludes that the evidence more nearly approximated the criteria for ratings of 10 percent for each knee, when considering limitation of motion caused by the knee disabilities. The Veteran has described painful motion in more than one direction of bilateral knee movement. At various times during the appeal period, the Veteran has reported pain into flexion and extension. As the Veteran has consistently demonstrated a noncompensable limitation of motion, a 10 percent disability rating is warranted on the basis of painful motion. 38 C.F.R. § 4.59 (2017). However, separate 10 percent disability ratings for each direction of movement on the basis of painful movement are not warranted. Where the limitation of motion of the specific joint involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint affected by limitation of motion. Therefore, while the Veteran has reported painful motion in multiple directions of knee movement, application of Diagnostic Code 5003 and 38 C.F.R. § 4.59 does not require separate 10 percent disability ratings under each diagnostic code. A 10 percent rating based on X-ray findings under Diagnostic Code 5003 will not be combined with a rating based on limitation of motion of the same joint. 38 C.F.R. § 4.71, Diagnostic Code 5003, Note (1) (2017). Based on the evidence of record, the Veteran does not exhibit a limited range of motion warranting an increased rating. Based on the VA examinations, the Veteran's left knee does not meet the criteria for separate ratings under Diagnostic Codes for limitation of flexion and extension. While there is limitation of flexion, which is the basis of the assignment of the 10 percent ratings, the evidence does not show separate compensable limitation of extension that would warrant any separate compensable rating for limitation of extension of either knee. The preponderance of the evidence of record is against a finding that extension of either knee has been limited to 10 degrees or worse at any time under consideration. Accordingly, the Board finds that there is no basis for the assignment of a rating in excess of 10 percent for a left or right knee disability. Because the preponderance of the evidence is against the claims, the claims for an increased rating for left and right knee disabilities based on limitation of motion must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As it pertains to the right knee, in addition to the 10 percent rating based on pain with motion, the Board finds that the Veteran qualifies for additional separate ratings under Diagnostic Codes 5257 through 5259. The May 2016 VA examiner indicated that the Veteran exhibited slight recurrent subluxation in the right knee, but none in the left knee. Under Diagnostic Code 5257 slight recurrent subluxation of the right knee warrants a 10 percent rating. In order to qualify for a 20 percent rating the Veteran would have to exhibit moderate recurrent subluxation or lateral instability; and in order to qualify for a 30 percent rating the Veteran would have to exhibit sever recurrent subluxation of lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). The Board finds that no objective medical evidence demonstrates any recurrent subluxation or lateral instability of the left knee, or more than slight recurrent subluxation in the right knee. Therefore, no additional separate or increased ratings are warranted. Following the grant of service connection for his right knee disability, the Veteran began to experience meniscal pain in the right knee. VA medical records dating June 21, 2009 document complaints of a right knee meniscal tear with pain and effusion. Under Diagnostic Code 5258, a 20 percent rating is provided for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). The Veteran had a history of a meniscal tear in the right knee continuing until his a medial meniscectomy on June 18, 2010. As a result, Diagnostic Code 5258 can also serve as a basis for a separate rating for his right knee. Therefore, the Board finds that the criteria for a separate 20 percent rating under Diagnostic Code 5258 are for the right knee from June 21, 2009, to June 17, 2010, the day before the date of the medial meniscectomy. The evidence does not show any meniscal tear or meniscectomy of the right knee, so no right knee rating under Diagnostic Code 5258 or 5259 is warranted. Diagnostic Code 5259, awards a maximum 10 percent rating for symptomatic removal of semilunar cartilage. In a July 2010 VA physical consult the Veteran reported that he still experienced pain in the right knee following the June 2010 procedure. During the May 2016 examination, the examiner also noted that the Veteran's right knee was swollen with a history of recurrent effusion, and the Veteran still reported pain with the right knee. Due to the fact that the meniscus was removed from the Veteran's knee, but he still experiences symptomatic pain, he is entitled to an additional separate rating under Diagnostic Code 5259. Therefore, the criteria for a rating under Diagnostic Code 5259 are met and a rating for the right knee pursuant to Diagnostic code 5259 as of June 18, 2010, is warranted for symptomatic meniscectomy. Accordingly, the Board finds that there is no basis for the assignment of a rating in excess of 10 percent for a right knee disability based on limitation of motion caused by pain, and that no separate compensable rating is warranted for any other right knee symptomatology. The Board finds the preponderance of the evidence is against the assignment of a rating greater than 10 percent for left knee limitation of motion caused by pain. However, the Board further finds that the evidence supports the assignment of a separate 20 percent from June 21, 2009, to June 17, 2010, under Diagnostic Code 5258; a separate rating of 10 percent as of June 18, 2010, but not earlier, under Diagnostic Code 5259; and a separate rating of 10 percent from May 24, 2016, but not earlier, under Diagnostic Code 5257. The Board finds that the preponderance of the evidence is against the assignment of any additional separate compensable ratings or any higher ratings. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to a rating in excess of 10 percent prior to February 3, 2009, and to a rating in excess of 20 percent as of February 3, 2009, for a low back disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability for limitation of motion caused by pain is denied. Entitlement to a separate 20 percent rating for a right knee disability from June 21, 2009, but not earlier, to June 17, 2010, but not later, under Diagnostic Code 5258 for torn meniscus is granted. Entitlement to a separate 10 percent rating for a right knee disability as of June 18, 2010, but not earlier, under Diagnostic Code 5259 for meniscectomy is granted. Entitlement to a separate 10 percent rating for a right knee disability as of May 24, 2016, but not earlier, under Diagnostic Code 5257 for recurrent subluxation is granted. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 2689 (1998). Although the Veteran does not meet the percentage criteria for a grant of TDIU, entitlement must be considered under 38 C.F.R. § 4.16(b). The May 2016 VA examiner determined that the Veteran's bilateral knee disability and low back disability would impact his ability to perform any type of occupational task or physical work. More specifically, the examiner stated that the Veteran's lumbosacral disability and bilateral lower extremity radiculopathy prohibit both sedentary and physical employment, and gainful employment. The Board notes it is the policy of the VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service connected disability shall be rated totally disabled and that Veterans who fail to meet the schedular criteria for a total disability rating shall be considered for such a rating on an extra-schedular basis. 38 C.F.R. § 4.16(b) (2017). The Board is precluded from awarding TDIU on an extra-schedular basis in the first instance, but must ensure that the claim is referred to the Director of VA's Compensation and Pension Service. The Board is thus required to remand the appeal so that it can be referred to the Director of Compensation and Pension Service. Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Refer the claim for TDIU to the Director of Compensation and Pension Service for consideration of entitlement to a total rating based on unemployability on an extra-schedular basis in accordance with 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs