Citation Nr: 18143832 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 09-43 926 DATE: October 22, 2018 ORDER Entitlement to a rating in excess of 10 percent for a low back disability prior to February 11, 2015, is denied. Entitlement to a rating in excess of 20 percent for a low back disability from February 11, 2015, is denied. Entitlement to a compensable rating for a right knee disability prior to March 31, 2009, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability prior to March 31, 2009, is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extra-schedular basis prior to July 12, 2012, is remanded. FINDINGS OF FACT 1. Prior to February 11, 2015, the Veteran’s back disability did not result in limitation of forward flexion greater than 30 degrees but not greater than 60 degrees, or combined range of motion 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. 2. From February 11, 2015, the Veteran’s low back disability did not result in limitation of forward flexion to at least 30 degrees or less, ankylosis, or incapacitating episodes due to intervertebral disc syndrome (IVDS). 3. Prior to March 31, 2009, the Veteran’s right knee disability is not manifested by ankylosis, instability, subluxation, semilunar cartilage abnormality, impairment of the tibia and fibula, or genu recurvatum; flexion and extension are not limited to a compensable degree. 4. From March 31, 2009, the Veteran’s right knee disability is shown to be characterized by pain, but with no ankylosis, recurrent subluxation, lateral instability, semilunar cartilage abnormality, impairment of tibia and fibula, or genu recurvatum; flexion was not limited to 30 degrees or more and extension was not limited to 15 degrees or more to warrant the next higher rating. 5. The Veteran’s left knee disability is shown to be characterized by pain, but with no ankylosis, recurrent subluxation, lateral instability, semilunar cartilage abnormality, impairment of tibia and fibula, or genu recurvatum; flexion was not limited to 30 degrees or more and extension was not limited to 15 degrees or more to warrant the next higher rating. CONCLUSIONS OF LAW 1. A rating higher than 10 percent for the Veteran’s low back disability prior to February 11, 2015, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes (Codes) 5235-5242. 2. A rating higher than 20 percent for the Veteran’s low back disability from February 11, 2015, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5235-5242 3. A compensable rating for a right knee disability prior to March 31, 2009, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5256-5263. 4. A rating in excess of 10 percent for a right knee disability prior to March 31, 2009, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5256-5263. 5. A rating in excess of 10 percent for a left knee disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Codes 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1987 to April l991, with an additional period of active duty for training (ACDUTRA). These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued a 10 percent rating for degenerative changes of the Veteran’s low back and separate noncompensable ratings then in effect for the Veteran’s bilateral knees. An August 2009 rating decision subsequently increased the rating for the left and right knees to 10 percent each, from October 27, 2006, and March 31, 2009, respectively. The Veteran continued to appeal for even higher ratings for these disabilities. In July 2012, a Travel Board hearing was held before the undersigned; a transcript is in the record. In August 2013 and December 2017, the Board remanded these matters for additional development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant, evaluating functional impairment on the basis of lack of usefulness, and evaluating the effects of the disability upon the veteran’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken with consideration of the possibility that different ratings may be warranted for different periods - in other words the rating may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, this already has occurred, at least concerning the Veteran’s back and right knee disabilities. In a claim for increase, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating the level of disability of an increased-rating claim begins one year before the claim was filed. See 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). As this particular claim for increase was received on February 28, 2008, the period for consideration is from February 28, 2007, to the present. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. All reasonable doubt concerning this or any other material determination is resolved in the veteran’s favor. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided, else this violates VA’s anti-pyramiding regulation. See 38 C.F.R. § 4.14. The Board notes that it has reviewed all of the evidence in the Veteran’s record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claims. 1. Entitlement to a rating in excess of 10 percent for a low back disability prior to February 11, 2015. 2. Entitlement to a rating in excess of 20 percent for a low back disability from February 11, 2015. The Veteran’s low back disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating). Under the General Rating, a 20 percent rating is warranted when there is 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 to 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 (that is, when additionally considering the adjacent cervical segment). See 38 C.F.R. § 4.71a, Codes 5235 to 5242. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. at Note (2). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, a 20 percent rating is also warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A higher 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is “a period of acute signs and symptoms... that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a. At the outset, the evidence of record indicates that the Veteran is not entitled to an increased rating for incapacitating episodes (i.e., doctor-prescribed bedrest) during the period on appeal as there is no evidence of incapacitating episodes having a total duration of at least two weeks. Absent some clinical (objective) documentation of bedrest prescribed by a physician or other healthcare provider for at least two weeks, see Code 5243, the Board cannot assign a higher rating during the period on appeal using the criteria described in the IVDS Rating. Additionally, the Board notes at the outset that, under the General Rating criteria, there is no basis for awarding a 50 percent or 100 percent rating as there is no indication of unfavorable ankylosis of the entire thoracolumbar spine or entire spine. See 38 C.F.R. § 4.71a, Codes 5235 to 5243. Prior to February 11, 2015 On April 2008 VA joints examination, the Veteran complained of stiffness with decreased range of motion and radiation into the left leg to the foot and radiation in the right leg. He denied any bladder or bowel dysfunction, but complained of aggravated symptoms with driving and sitting for prolonged periods of time. On physical examination, forward flexion was to 85 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 45 degrees. There was no pain associated with range of motion with gravity, and against resistance. Repetitive testing did not reveal any pain, fatigue, weakness, lack of endurance, or incoordination. There was no scoliosis or kyphosis. On July 2009 VA joints examination, the Veteran reported progressive back pain with stiffness and decreased motion. He complained of occasional radiation to the left knee and distal thigh with constant burning, radiation to the left lower extremity, and numbness in the left foot. The Veteran appeared to dwell on symptomology “out of proportion to physical findings.” On physical examination, his gait was normal and there was no need for assistive devices. Flexion was to 80 degrees, extension to 15 degrees, right and left lateral flexion and rotation each to 20 degrees. Repetitive use testing revealed no additional loss of function/range of motion. The examiner opined that the Veteran’s level of disability was unchanged and considered to be mild. During his July 2012 Travel Board hearing, the Veteran testified that he was unable to drive “real far” and that he can barely drive at all without stopping. He also testified that his back locked up. On August 2013 VA back examination, the Veteran reported stabbing pain in his back and some “lightning pain pins and needle” down his left leg. There was no electrodiagnostic evidence of lower extremity peripheral neuropathy, lower extremity radiculopathy, or right or left median neuropathy. He denied any flare-ups that impact the function of his back. On examination, flexion was to 65 degrees and extension to 30 degrees, with no objective evidence of painful motion. Right lateral flexion was to 25 degrees; left lateral flexion, and right and left lateral rotation were each to 30 degrees, with no evidence of pain. He was able to perform repetitive use testing with no additional loss of function/range of motion. No guarding or muscle spasms were noted. Muscle strength, reflex, and sensory exams were normal. Straight leg raising test was negative. There was no radicular pain or any other signs or symptoms due to radiculopathy, and no other neurological abnormalities were noted. The Veteran did not have IVDS. He regularly used a cane as an assistive device. Based on the foregoing, the Board finds that, prior to February 11, 2015, a rating in excess of 10 percent for a back disability is not warranted. The Board has carefully reviewed the medical opinions and finds the VA examiners’ opinions to be highly probative . See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The VA examinations were thorough and adequate and provided a sound basis upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiners considered the relevant history, solicited information regarding the Veteran’s activities, performed physical examinations, and provided rationales to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Thus, the more probative medical opinion weighs against an increase as there is no evidence of 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. The Board has also considered the effect of pain and weakness in evaluating the Veteran’s disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995). The Board notes that the VA examination reports show that there was no additional limitation with repetitive motion even with evidence of pain and the Veteran did not experience additional functional limitation. Based on the evidence, the Board finds that the current 10 percent evaluation adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability. Id. Therefore, the Board finds that prior to February 11, 2015, the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 10 percent. From February 11, 2015 During February 11, 2015, VA treatment, range of motion testing revealed flexion to 40 degrees with sharp pain; extension to 25 degrees; left and right lateral flexion to 30 degrees, with sharp pain on left lateral flexion; and left and right lateral rotation to 25 degrees, with sharp pain on left rotation. On May 2015 VA back examination, the Veteran reported numbness and tingling radiating down his legs. He denied that flare-ups impact the function of his back. Range of motion testing revealed flexion to 30 and extension to 5 degrees, each with pain; right and left lateral flexion and rotation were each to 10 degrees, with pain. Although the Veteran could perform repetitive use testing with no additional limitation of motion, functional loss included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. Mild pain on palpation caused wincing and guarding, and muscle spasm of the back was noted. Muscle strength testing was normal, with no evidence of muscle atrophy. His reflex examination revealed hypoactive reflexes with decreased sensation in the bilateral anterior thigh, lower leg/ankle, and foot/toes. The straight leg raising test was positive and radiculopathy was noted. No other neurologic abnormalities were noted. IVDS was diagnosed, with incapacitating episodes lasting at least one week but less than two weeks. The Veteran regularly used a cane for assistance when walking. Although a back scar was noted, the examiner determined that it was not painful and/or unstable, or larger than 39 square centimeters. Although pain and weakness were reported during flare-ups, the Veteran was unable to replicate the estimated limitation. On July 2015 VA back examination, the Veteran reported that his back hurts “every minute.” Range of motion testing revealed forward flexion to 50 degrees, extension and right and left lateral flexion to 30 degrees, and right and left lateral rotation to five degrees. Functional loss included difficulty picking things up and bending. There was no pain with weight-bearing but there was moderate tenderness to palpation of the lower back. Repetitive use testing did not result in additional loss of function or range of motion. No response was provided regarding flare-ups. There was no guarding or muscle spasm of the back. Additional factors contributing to the back disability included less movement than normal due to ankylosis, adhesions, etc., and interference with sitting and standing. Muscle strength testing was normal in all flexion and extension, except for bilateral knee extension, which showed active movement against some resistance. Reflex and sensory exams were normal. The straight leg raising test was negative for the right leg and positive for the left leg. Radiculopathy was noted in the left lower extremities; no other neurologic abnormalities were noted. IVDS was diagnosed, but the Veteran did not have any episodes that required bed rest. The Veteran regularly used a cane [The Board notes here that a November 2015 rating decision granted service connection for left leg radiculopathy, rated 10 percent disabling, effective July 2, 2015. Based on later findings that the Veteran’s radiculopathy was not related to his service-connected back disability, the RO subsequently severed service connection for such in a July 2017 rating decision, effective October 1, 2017. He has not appealed that rating decision and, as discussed further, there is no evidence of radiculopathy related to the Veteran’s service-connected back disability from that date.] During July 2016 VA treatment, intermittent paresthesias in the lower extremities and lower extremity weakness were noted. The Veteran reported a history of loss of bowel and bladder control, but none currently. He had limited trunk flexion and his gait was guarded and rigid. During January and July 2017 VA treatment, the Veteran’s range of motion testing revealed flexion to 70 degrees with pain, and extension 10 to 20 degrees. On January 2018 VA back examination, the Veteran reported symptoms including sharp, needle-like pain radiating to the left leg, numbness in his lower back and legs, heating pain, and muscle spasms. Flare-ups included muscle spasms and sharp shooting pains. Functional impairments included difficulty controlling bowels, limited range of motion, inability to sit or stand for long periods of time, and difficulty driving. Range of motion testing revealed forward flexion to 75 degrees and extension and right and left lateral flexion and rotation to 30 degrees each. Pain was noted but did not result in or cause functional loss. There was no pain on weight-bearing or non-weight bearing, no objective evidence of localized tenderness or pain on palpation, and no evidence of pain on passive range of motion testing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Pain significantly limited functional ability with repeated use over time while pain and fatigue limited functional ability with flare-ups; neither, however, resulted in additional loss of range of motion. Muscle spasms resulted in abnormal gait/spinal contour. Muscle strength testing was normal except concerning knee extension (which was active against some resistance). Reflex and sensory exams were normal, and the straight leg test was negative. Radiculopathy was not noted and the Veteran had no other neurologic abnormalities. IVDS was not diagnosed. The Veteran reported occasional use of a cane for back and knee support. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for a back disability from February 11, 2015, is not warranted. Although the May 2015 VA back examination showed flexion limited to 30 degrees, a February 2015 VA treatment record showed flexion to 40 degrees and a July 2015 VA back examination (so, two months later), revealed flexion to 50 degrees. Additionally, in June 2016, flexion was limited to 70 degrees. In light of the foregoing, the Board finds that the evidence as a whole does not more nearly approximate a rating of 40 percent. The Board has also considered the effect of pain and weakness in evaluating the Veteran’s disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995). The Board notes that the VA examination reports show that there was no additional limitation with repetitive motion, even with evidence of pain. Although the Veteran experienced additional functional limitation, the loss in range of motion is not commensurate with that for the next higher rating. Based on the evidence, the Board finds that the current 20 percent evaluation from February 11, 2015, adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability. Id. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 20 percent from February 11, 2015. The Board has also considered whether separate, compensable, ratings are warranted based on neurological manifestations. Note (1) of the General Rating provides for separate ratings based on associated objective neurological abnormalities. Despite the Veteran’s reports of numbness and radicular pain, there remains no clinical evidence in the record of radicular or other neurological symptoms linked to his low back disability (other than the period for which service connection was previously in effect). 3. Entitlement to a compensable rating for a right knee disability prior to March 31, 2009. 4. Entitlement to a rating in excess of 10 percent for a right knee disability from March 31, 2009. 5. Entitlement to a rating in excess of 10 percent for a left knee disability. The Veteran contends that his bilateral knee disability is more disabling than the ratings currently assigned. The Veteran’s bilateral knee disability is rated under Code 5010-5260 for arthritis resulting in limitation of flexion. In general, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the Veteran’s knee disability is rated, by analogy, under the criteria for limitation of flexion (Code 5260). Code 5010 addresses traumatic arthritis and directs that the evaluation of arthritis be conducted under Code 5003, which provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint(s) involved. 38 C.F.R. § 4.71a, Code 5003. When there is no limitation of motion of the specific joint(s) that involve degenerative arthritis, Code 5003 provides a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. When there is some limitation of motion of the specific joint(s) involved that is noncompensable under the appropriate diagnostic codes, Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint(s) that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint(s) involved. 38 C.F.R. § 4.71a. The codes that focus on limitation of motion of the knee are Codes 5260 and 5261. Under Code 5260, flexion of the leg limited to 60 degrees warrants a zero percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Under Code 5261, extension limited to five degrees warrants a zero percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. Under Code 5257, knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. 38 C.F.R. § 4.71a, Code 5257. Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Codes 5258, 5259. [The Veteran has not had ankylosis of the knee, impairment of the tibia or fibula, or genu recurvatum diagnosed at any time during the evaluation period. Therefore, the criteria for rating such disabilities under Codes 5256, 5262, and 5263 will not be discussed.] Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition are not “duplicative of or overlapping with the symptom[s]” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment for knee instability (Code 5257) and limited knee motion (either in flexion or extension, or both) does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997); see also VAOPGCPREC 9-98 (August 14, 1998) (explaining that if there is a disability rating under Code 5257 (instability), and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59). Compensating a claimant under Codes 5257 and 5258 (dislocated cartilage with locking pain and effusion) also does not constitute pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that that ratings under Codes 5257 and 5260 and 5261 do not necessarily preclude ratings under Codes 5258 and 5259). On April 2008 VA joints examination, the Veteran complained of stiffness, swelling, and difficulty climbing stairs, bending, and squatting in his right knee. However, he stated that the pain in his left knee was worse, with popping sensations, swelling, and stiffness. He reported occasional locking of both knees, but no subluxation or dislocation; he only reported instability in the left knee (but no falls). On physical examination, no gross swelling, deformity, or tenderness was noted in the right knee; some palpable tenderness over the left knee patella was noted, but no gross deformity or swelling. Pain was only associated with range of motion testing in the left knee. Range of motion testing revealed flexion to 140 degrees for the right knee and flexion to 128 degrees for the left knee, each with full extension. Repetitive range of motion in either knee did not reveal any pain, fatigue, weakness, lack of endurance, or incoordination. On July 2009 VA joints examination, the Veteran reported stiffness and pain associated with his right knee, but no giving way or swelling; his left knee gave way every other day. He also reported associated weakness, popping sensations, swelling, stiffness, and difficulty climbing stairs with his left knee. The examiner noted that the Veteran dwelt on symptomatology “out of proportion to physical findings.” He further noted that the Veteran did not need assistive devices. Physical examination of both knees revealed no effusion or swelling. Range of motion testing revealed flexion to 132 degrees for the right knee and flexion to 134 degrees for the left knee, each with full extension. There was no detectable knee instability for either knee and no painful motion, tenderness, spasm, edema, fatigability, lack of endurance, weakness, or instability. Additional loss of function due to flare-ups could not be determined without resorting to mere speculation. During his July 2012 Travel Board hearing, the Veteran testified that his left knee was much worse than his right knee, that climbing stairs “is a real pain,” and that going down stairs is even worse. He also testified that his knees have given out while going down stairs. On August 2013 VA knee and lower leg examination, the Veteran reported pressure, pain, stiffness, and a locking sensation. He also reported difficulty climbing stairs, bending, and squatting. He denied that flare-ups impact the function of his knees. Range of motion testing revealed flexion to 140 degrees bilaterally with no limitation of extension. He was able to perform repetitive use testing with no additional limitation of motion and no functional loss/impairment. His muscle strength and joint stability testing were normal. There was no evidence of recurrent patellar subluxation/dislocation. The Veteran denied any shin splints, meniscal conditions, or joint replacements. During November 2014 VA treatment, the Veteran reported locking in his right knee, with “on and off” swelling. On May 2015 VA knee and lower leg examination, right knee tendonitis and osteoarthritis and left knee meniscal tear and patellofemoral pain syndrome were diagnosed. The Veteran reported pain with stiffness and swelling. He denied that flare-ups impact the function of his knees. Functional loss included knee pain when bending, extending, or kneeling down. Range of motion testing revealed flexion to 100 degrees for the right knee and 140 degrees for the left knee, with no limitation of extension for either knee. Mild pain was noted on flexion and extension of the right knee; no pain was noted in the left knee. He was able to perform repetitive use testing with no additional limitation of motion and no functional loss. Although pain, weakness, fatigability, or incoordination significantly limited functional ability in the right knee with repeated use over time, the examiner could not describe it in terms of range of motion other than “less movement than normal.” Additional factors contributing to the right knee disability were disturbance of locomotion and interference with standing. Muscle strength testing was normal, with no evidence of muscle atrophy or ankylosis. Joint stability tests revealed no history of recurrent subluxation, lateral instability, or recurrent effusion for either knee. Instability was only noted in the left knee. There was no evidence of shin splints. The left knee revealed a meniscal tear with frequent episodes of joint locking and joint pain, but no joint effusion. (The Veteran had a left knee meniscectomy in 1989; the resulting scar was not painful or unstable, did not have a total area equal to or greater than 39 square centimeters, and was not located on his head, face, or neck.) The Veteran reported occasional use of a brace and regular use of a cane for assistance when walking. On July 2015 VA knee examination, bilateral degenerative arthritis of both knees was diagnosed. The Veteran denied flare-ups but reported functional loss in that his knees “lock up.” Range of motion testing revealed flexion and extension of 10 to 95 degrees for the right knee and 10 to 110 degrees for the left knee. Although pain was noted on flexion and extension, it did not cause functional loss. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. Additional factors included less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with standing. Muscle strength testing revealed active movement against some resistance with a reduction in muscle strength, but no muscle atrophy. There was no history of recurrent subluxation or lateral instability and no evidence of joint instability for either knee. The examination revealed no shin splints and no meniscal conditions (except for a meniscectomy in 1989). The examiner determined that the Veteran did not use an assistive device as a normal mode of locomotion. During December 2016 VA treatment, the Veteran’s range of motion for each knee was zero to 135 degrees. During July 2017 VA treatment, passive range of motion for each knee was 130 degrees. On January 2018 VA knee examination, the Veteran reported symptoms of swelling, locking, stiffness, and weakness. Flare-ups include swelling and pain following overexertion. He is limited from overexerting himself with walking stairs, limited physical activity, limited range of motion, and limited standing or sitting for long periods of time. Range of motion testing was normal for both knees (140 degrees or greater flexion and full extension) with no pain noted on examination (in either weight-bearing or non-weight bearing, or in passive range of motion testing) and no evidence of crepitus in either knee. The Veteran could perform repetitive use testing with no additional loss of function or range of motion; pain, weakness, fatigability, or incoordination did not significantly limit functional ability in either knee with repeated use over time or with flare-ups. Additional factors include weakened movement due to muscle injury or peripheral nerves injury. Muscle strength testing revealed active movement against some resistance, with a reduction in muscle strength due to the bilateral knee disability. There was no history of recurrent subluxation or lateral/joint instability, but there was a history of recurrent effusion (with left knee swelling about one year ago). The Veteran did not have recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment; a meniscus condition was not noted (except for a left knee meniscectomy in 1989). The Veteran reported occasional use of a cane for his back and knee conditions. Right Knee prior to March 31, 2009 The Board notes that the Veteran reported pain generally during his April 2008 VA examination but specifically denied pain with range of motion testing. Repetitive use testing also failed to elicit pain. Additionally, range of motion testing did not manifest flexion limited to 45 degrees or extension limited to 10 degrees which would warrant a compensable rating under Codes 5260 or 5261. Likewise, there was no evidence of right knee instability, which would warrant a compensable rating under Code 5257. In sum, the Board finds that the medical evidence of record fails to demonstrate that the Veteran’s disability picture is consistent with the limitations of motion for a compensable rating prior to March 31, 2009, even with consideration of the DeLuca factors such as additional limitation of functioning on flare ups, weakness, incoordination, fatigability, or lack of endurance. Consequently, the Board finds that the preponderance of the evidence is against finding that a compensable rating is warranted prior to March 31, 2009. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Right Knee from March 31, 2009 Turning to application of the applicable rating criteria, the Board finds that the preponderance of the evidence weighs against the award of a rating in excess of 10 percent from March 31, 2009, for the Veteran’s left knee disability. Specifically, during the appeal period, the Veteran’s left knee did not manifest flexion limited to 30 degrees or extension limited to 15 degrees which would warrant an increased rating pursuant to Codes 5260 or 5261. The Board further notes that the Veteran did not complain of right knee instability during his numerous VA examinations. Accordingly, a separate rating under Code 5257 is not warranted. The Board finds, therefore, that the medical evidence of record fails to demonstrate that the Veteran’s disability picture is consistent with the limitations of motion for the next higher rating in the present case even with consideration of the DeLuca factors such as additional limitation of functioning on flare ups, weakness, incoordination, fatigability, or lack of endurance. Consequently, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted for the Veteran’s right knee disability from March 31, 2009. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Left Knee Based on a thorough review of the evidence of record, the Board finds that throughout the appeal period, a rating in excess of 10 percent is not warranted for the Veteran’s left knee disability as no treatment record or VA examination revealed left knee range of motion testing that meets the 20 percent rating under Codes 5260 or 5261. Specifically, under Code 5260, a 20 percent rating is warranted for flexion limited to 30 degrees. The Veteran’s forward flexion for the left knee was measured to end at 128 degrees in April 2008, 134 degrees in July 2009, 140 degrees in August 2013 and May 2015, 110 degrees in July 2015, 135 degrees in December 2016, 130 degrees in July 2017, and 140 degrees in January 2018. Additionally, limitation of extension was only noted on July 2015 VA examination, and the 10 degree limitation warrants only a 10 percent rating. Also, consideration of other Codes for rating knee disability (5259, 5262, 5263) is inappropriate in this case as the Veteran’s left knee disability do not include the pathology required in the criteria for those Codes (ankylosis, malunion or nonunion of tibia or fibula, or genu recurvatum). See 38 C.F.R. § 4.71a. The Board notes that the May 2015 VA examination noted a meniscal tear with frequent episodes of joint locking and joint pain, but no effusion. However, two months later, the July 2015 VA examiner determined that the Veteran did not have any meniscal conditions. Likewise, the January 2018 VA examiner concluded the same. The Board therefore finds that the record as a whole does not show that the Veteran has a meniscal condition that can be separately rated. The Board further notes the Veteran’s complaints of left knee instability. However, the July 2009 VA examiner noted that the Veteran’s symptomology was “out of proportion to physical findings.” Additionally, while he complained of his left knee giving way every other day, the examiner found no detectable left knee instability for the knee. Likewise, joint stability testing was normal on August 2013, July 2015, or January 2018 VA examination. While joint instability testing was noted on May 2015 VA examination, no instability was found two months later during his July 2015 VA examination. In light of the foregoing, the Board finds that the evidence as a whole shows that that the Veteran does not have joint instability of the left knee. Accordingly, a separate rating based on Code 5257 (subluxation/instability) is not warranted. The Board recognizes the Veteran’s complaints of pain and functional loss as a result of his left knee disability. The Veteran also reported that he experienced pain. However, the competent and probative evidence of record does not indicate significant functional loss due to the Veteran’s left knee disability. The preponderance of the evidence is against the Veteran’s claim, and the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. The Board finds that there is no evidence to warrant a higher left knee rating on any grounds at this time. REMAND Entitlement to Extra-Schedular TDIU TDIU was granted effective July 12, 2012, the date the Veteran first met the schedular requirements for TDIU. However, the Veteran asserts that he has been unemployed due to his service-connected disabilities since June 2010. See TDIU Application. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in that section. Such cases are to be referred to Director, Compensation Service, for consideration of an extra-schedular evaluation as the Board does not have the authority to assign an extra-schedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the claim for TDIU prior to July 12, 2012, must be remanded for referral to the Director, Compensation Service, for consideration of an extra-schedular TDIU. This claim is REMANDED for the following action: Refer the Veteran’s TDIU claim prior to July 12, 2012, to the Director, Compensation Service, for extra-schedular consideration. See 38 C.F.R. §4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel