Citation Nr: 18154321 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 96-41 249A DATE: November 29, 2018 ORDER Entitlement to service connection for sores of the mouth, to include herpes simplex, is dismissed. Entitlement to an initial disability rating in excess of 20 percent for residuals of a left eye injury prior to March 11, 2016 is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis prior to January 5, 2010 is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee osteoarthritis prior to January 5, 2010 is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2017 signed statement from the Veteran, he indicated his desire to withdraw the issue of entitlement to service connection for sores of the mouth, to include herpes simplex. 2. The medical evidence of record prior to March 11, 2016 shows that the Veteran’s service-connected residuals of a left eye injury was manifested by clear active pathology and treatment for the Veteran’s recurrent corneal erosions and visual acuity loss, but no prescribed rest. 3. Throughout the period of appeals prior to January 5, 2010, the Veteran’s bilateral knees have only shown evidence of painful motion. There have been no showings of loss of flexion to 30 degrees or less or loss of extension to 15 degrees or more; instability or subluxation; non union; malunion; dislocation; ankylosis; or incapacitating exacerbations. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement service connection for sores of the mouth, to include herpes simplex by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for an initial disability rating in excess of 20 percent for service-connected residuals of a left eye injury prior to March 11, 2016 have not been met. 38 U.S.C. §§ 1110, 1155, 5107 (2012); 38 C.F.R. §§ 3.383, 3.951, 4.1, 4.2, 4.7, 4.79, 4.80, 4.83a, Table V, 4.84a, Diagnostic Code 6009 (revised on December 10, 2008). 3. The criteria for evaluations in excess of 10 percent each prior to January 5, 2010 for bilateral knee osteoarthritis have not been met throughout the appeal period. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Code 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August to September 1987 and from April 1992 to June 1995. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 1995 rating decision of the Regional Office (RO). These issues have previously been before the Board in September 2008, August 2010, July 2012, January 2017, and July 2017, at which time they were remanded for additional development. The Veteran originally requested a hearing for the issues of entitlement to service connection for mouth sores; entitlement to increased evaluations for the bilateral knees; and entitlement to a TDIU. As no hearing had been provided, the Board previously remanded these claims for the provision of such hearing when these claims were last before the Board in July 2017. However, in a November 2017 statement from the Veteran’s attorney, it was indicated that the Veteran no longer desired a hearing for those issues as per a signed June 2017 correspondence from the Veteran. Thus, the Board deems his prior request for a hearing withdrawn. See 28 C.F.R. § 20.704 (2017). Therefore, these claims have returned to the Board for adjudication. Additionally, in its July 2017 decision, the Board increased the Veteran’s left eye disability to an initial rating of 20 percent prior to March 11, 2016 and 60 percent thereafter. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in June 2018, a Joint Motion for Partial Remand (Joint Motion) was issued. The Court did not seek to disturb the increased ratings granted, but rather found that inadequate reasons and bases had been provided to support the rating of 20 percent, but no higher, prior to March 11, 2016 by way of application of improper law to that time period. It was indicated that, because the law regarding disability ratings of the eyes had changed during the course of the appeal, in December 2008, the Veteran would have been afforded the more beneficial of the two laws thereafter, but only the pre-December 2008 regulations before that time. It appears that the Board previously incorrectly applied the December 2008 regulations to the period of appeals prior to that time. Therefore, the issue of entitlement to a higher evaluation than 20 percent prior to March 11, 2016 was remanded for application of correct law in the provision of the Board’s reasons and bases. The caption on the title page has been amended to reflect this finding. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through a signed December 2017 correspondence, has withdrawn the appeal with regard to the issue of entitlement to service connection for sores of the mouth, to include herpes simplex and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. The Veteran was represented by an attorney at the time the withdrawal was reported and it is assumed the attorney informed the Veteran of the consequences of withdrawing his claim. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as here, the current appeals are based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence ‘used to decide whether an original rating on appeal was erroneous.’ Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, ‘staged’ ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Left Eye Procedurally, a November 2015 rating decision, implementing an August 2015 Board decision, granted service connection for the residuals of a left eye injury and assigned a noncompensable disability rating effective June 28, 1995. The Veteran filed a request for an increased rating in December 2015. In response to the increased rating claim, a February 2016 rating decision increased the Veteran’s disability evaluation of the residuals of the left eye injury which was noncompensable to 20 percent effective December 21, 2015. Thereafter, the April 2016 rating decision found a clear and unmistakable error was made in the February 2016 rating decision which assigned a 20 percent evaluation for residuals of left eye injury effective December 21, 2015. Instead, the rating decision corrected the finding to restore the 10 percent evaluation effective continuously from June 28, 1995. Initially, the Board notes that in written argument received in April 2017, the Veteran’s attorney argued that VA failed to apply the correct disability rating schedule to the Veteran’s left eye injury. In particular, while the effective date of the service connection for the left eye injury is June 28, 1995, the RO applied only the amended rating criteria effective since 2008, but not the rating criteria in effect prior to 2008. In its July 2017 decision, the Board increased the Veteran’s service-connected left eye injury to 20 percent disabling from June 28, 1995 and such was promulgated by the RO in a July 2017 rating decision. As discussed in the introduction, the Court did not disturb that increased rating and limited the inquiry to the Veteran’s evaluation of 20 percent prior to March 11, 2016. Therefore, the discussion that follows shall proceed in like manner. The Veteran’s left eye disability has been rated under Diagnostic Code 6009. Under Diagnostic Code 6009, which govern disabilities due to unhealed eye injuries, disability ratings are assigned according to a general rating formula. Diagnostic Code 6009, as was in effect prior to December 2008, addressed disabilities in chronic form and provided for ratings based on impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.84a (2008). The minimum rating during active pathology was to be 10 percent. Effective from December 10, 2008, VA revised the rating criteria for the evaluation of eye disorders. See 73 Fed. Reg. 66,543 -66,554 (Nov. 10, 2008) (codified at 38 C.F.R. § 4.79); see also corrections at 74 Fed. Reg. 7,648 (Feb. 19, 2009). The Board will evaluate the Veteran’s service-connected disability under both the former and revised criteria, although the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.C. § 5110 (g) (West 2014); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). In this case, the revised criteria only apply to the period from December 10, 2008 to March 11, 2016. Diagnostic Code 6009, as in effect from December 10, 2008, provides for evaluation based on either visual impairment, or a graduated rating formula premised upon the frequency and severity of incapacitating episodes. See 38 C.F.R. § 4.79 (2017). Under the formula for incapacitating episodes, for a 10 percent rating to be warranted for an eye disorder based on incapacitating episodes there must be incapacitating episodes having a total duration of at least one week over the past twelve months. Id. A 20 percent rating is warranted for an eye disorder based on incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating is warranted for an eye disorder based on incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. And a 60 percent rating is warranted for an eye disorder based on incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, Note. Visual impairment is rated based on the consideration of three factors: 1) impairment of visual acuity (excluding developmental errors of refraction), 2) visual field, and 3) muscle function. 38 C.F.R. § 4.75 (a). However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. 38 C.F.R. § 4.75 (b). Central visual acuity is to be evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, the visual acuity of the poorer eye is to be evaluated using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76 (b). When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). Under the old rating criteria, the severity of the Veteran’s eye disability may also be rated based on visual acuity loss under 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). The basis for rating visual acuity takes into account the best distance vision obtainable after best correction by glasses. 38 C.F.R. § 4.75. A compensable rating for loss of visual acuity requires that corrected vision be 20/40 in one eye and 20/50 in the other. 38 C.F.R. §§ 4.84 (a), Diagnostic Code 6079 (2008); 4.79, Diagnostic Code 6066 (2017). The 2008 regulations and the current regulations both indicate that the extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008); 38 C.F.R. § 4.77 (b) (2017). Under the 2008 version of Diagnostic Code 6080, unilateral visual field impairment was assigned a 10 percent rating for concentric contraction of the visual field to 60 degrees, but not to 45 degrees; concentric contraction to 45 degrees, but not to 30 degrees; concentric contraction of the visual field to 30 degrees, but not to 15 degrees; loss of the nasal half of the visual field; or loss of the temporal half of the visual field. A 20 percent rating is assigned for unilateral concentric contraction of the visual field to 15 degrees, but not to 5 degrees, and a 30 percent rating is assigned for unilateral concentric contraction of the visual field of 5 degrees. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2008). Under the current version of Diagnostic Code 6080, a 10 percent rating is warranted for concentric contraction of visual field with a remaining field of 46 to 60 degrees unilaterally or bilaterally, 31 to 45 degrees unilaterally, or 16 to 30 degrees unilaterally; a 20 percent rating is warranted for concentric contraction of visual field with a remaining field of 6 to 15 degrees unilaterally; a 30 percent rating is warranted for concentric contraction of visual field with a remaining field of 31 to 45 degrees bilaterally or 5 degrees unilaterally; a 50 percent rating is warranted for concentric contraction of visual field with a remaining field of 16 to 30 degrees bilaterally; a 70 percent rating is warranted for concentric contraction of visual field with a remaining field of 6 to 15 degrees bilaterally; and a 100 percent rating is warranted for concentric contraction of visual field with a remaining field of 5 degrees bilaterally. A 10 percent rating is also rated for a unilateral eye disability with visual defect with loss of superior half of visual field, loss of inferior half of visual field, loss of nasal half of visual field, or loss of temporal half of visual field. Higher ratings are assigned only for bilateral loss of visual field. 38 C.F.R. § 4.79, Diagnostic Code 6080 (2017). Turning to the medical evidence of record from the effective date of the Veteran’s service connection, the first day following separation from active service, the Veteran’s service treatment records report he was seen for blurry vision in 1995. On his report of medical examination for purposes of separation dated June 1995 the Veteran reported he had been stabbed in the eye. The examiner noted a corneal scar in the diagnosis section of the examination. At the time of the examination, his vision was 20/100 distance and 20/70 near in both eyes. A June 2006 treatment notation from Dr. K. F., D.O. noted the Veteran had an injury to his left eye which resulted in decreased vision and dry eye. Thereafter, a January 2010 VA optometrist notation documented poor vision in the left eye when lacerated by a wire. The left eye was described as “seizing up” with pain and tears at times, usually in the mornings. On examination, the Veteran’s best corrected visual acuities were 20/20 in the right eye and 20/30 in the left eye. His pupils were equal round and reactive to light without signs of afferent defect and fields were full with confrontational testing in each eye. Bilaterally the lids and lashes were clear and the corneas were clear with no signs of scarring. A November 2013 private eye examination revealed episodes of pain along with 40/200 vision in the right eye and 60-70/200 vision in the left eye. A March 2015 letter from T.C.G., DO, an independent medical examiner, reported the Veteran’s October 1993 left eye injury resulted in a corneal abrasion in that eye which required eye drops, patching and pain medication. Astigmatism was noted in the left eye prior to the injury. Moreover, T.C.G. reported no corneal scarring in the left eye after the injury. With his request for an increased rating, the Veteran submitted an affidavit in December 2015. In the affidavit, he reported experiencing significant pain on a daily basis from his left eye injury. Moreover, he reported experiencing monthly incapacitating episodes related to his eye pain which he indicated began in 1993. During an episode, he was unable to function and had to lie down. The record includes a December 2015 eye examination performed by Dr. G.Z. At the time of examination, the Veteran’s uncorrected distance vision was 20/200 in the right eye and 20/400 in the left eye and his corrected distance vision was 20/70 -2 in the right eye and 20/200 in the left eye. A superior corneal epithelial defect of the left eye was revealed and a new spectacle correction lenses for distance was prescribed. For management of his recurrent erosion, the Veteran was using an artificial tear drop while awake and an ointment at bedtime to keep his left cornea well lubricated. A VA examination was then performed in February 2016. The Veteran was diagnosed with presumed recurrent corneal erosions. On examination, the Veteran’s uncorrected distance and near vision was 20/100 in the right eye and 20/200 in the left eye. Similarly, his corrected distance and corrected near vision was also 20/100 in the right eye and 20/200 in the left eye. His pupils were 3 millimeters on both sides and were round and reactive to light. The Veteran did not have anatomical loss of either eye and his vision was not limited to no more than light perception in either eye. He was able to recognize test letters at 1 foot or closer and was able to perceive objects, hand movements and count fingers at 3 feet. No astigmatism, scotoma, keratoconus, pterygium or diplopia were found. Additionally, the slip lamp and external eye examination was found to be normal. Notably, the examiner also found the Veteran was not suffering from incapacitating episodes attributable to the eye condition. The current level of severity given to the Veteran’s continued complaints of symptoms of consistent recurrent corneal erosions was moderate to severe. A March 2016 letter from G.Z., O.D. stated the Veteran’s low vision status of the left eye was responsible for recurrent corneal erosions that caused multiple painful and long-lasting incapacitating episodes. These episodes could also trigger severe headaches. A prescription was included to take medication as needed as well as bedrest until erosions are resolved. For the period prior to December 10, 2008, which applies the former Diagnostic Code 6009, the record documents clear active pathology and treatment for the Veteran’s recurrent corneal erosions and visual acuity loss, but no indication of any requirement for rest or medically documented episodic incapacity. In light of the fact the Veteran possess both the treatment and the loss of visual acuity during the continuance of the active pathology, the Board finds a rating of 20 percent is warranted. However, a rating higher than 20 percent is not warranted because there is no evidence of additional requirement of rest or medically documented episodic incapacity to warrant a higher rating. For the period beginning on December 10, 2008, through March 10, 2016, which applies both the former as well as the revised Diagnostic Code 6009, the Board finds a rating of 20 percent under the former Diagnostic Code 6009 for clear active pathology and treatment is continued. A higher rating under the revised Diagnostic Code 6009, would not be warranted. In fact, the Veteran would not be entitled to a compensable disability rating as the objective medical evidence does not support the Veteran’s contentions that he suffered monthly incapacitating episodes during this period of the appeal. Prior to December 10, 2008, despite the Veteran’s contentions, there is no medical evidence to support finding that the Veteran’s condition required rest. There was no mention at all in treatment records even suggesting that rest may be a required treatment for the Veteran’s condition. Additionally, prior to March 11, 2016 to December 10, 2008, despite the Veteran’s contentions, there is no medical evidence to support finding that the Veteran was experiencing prescribed bedrest. In particular, just one month prior, the February 2016 VA examination reported no incapacitating episodes due to the Veteran’s left eye. The Board acknowledges the Veteran’s contention that these incapacitating episodes began in 1993 and have persisted monthly since that time. While the Veteran has reported these persistent periods of incapacitation, he, as a layperson is not competent to diagnose prescribed bedrest. He is clearly competent to report how his eye feels. However, as defined for VA purposes, the definition of incapacitating episodes requires treatment by a physician during these periods of bedrest is required. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, there is no competent medical evidence of record to support a higher disability rating from December 10, 2008 to March 11, 2016 for the Veteran’s service connected residuals of a left eye injury. In summary, the preponderance of evidence only supports a rating of 20 percent for service connected residuals of a left eye injury prior to March 11, 2016 and no higher. There is no reasonable doubt to be resolved in this regard. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2017). 2. Bilateral Knees The Veteran’s bilateral knees are currently evaluated prior to January 5, 2010 under the criteria for disabilities of the knee and leg under 38 C.F.R. § 4.71a, Diagnostic Code 5260 at 10 percent disabling each. As the Veteran’s disabilities include diagnosed arthritis, Diagnostic Code 5010 is applicable. Diagnostic Code 5010 indicates to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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 or joints 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 or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides for a separate 10 percent rating for either slight recurrent subluxation or slight lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Moderate recurrent subluxation or moderate lateral instability is rated 20 percent disabling. Id. Severe recurrent subluxation or severe lateral instability is rated 30 percent disabling. Id. The terms “slight”, “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6 (2017). Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg 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. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. 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 portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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 (2017). Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran claims that his bilateral knee osteoarthritis is worse than reflected by his current evaluations of 10 percent each. A review of the Veteran’s service treatment records show that the Veteran entered service with a history of a right knee injury. He also suffered a left knee contusion with effusion requiring draining on May 1993. In this regard, the Veteran complained of pain when running or exercising. In November 1993, the Veteran was diagnosed with recurring patellofemoral pain syndrome, with no other complication or sequelae. In March and April 1995, the Veteran was seen for complaints of bilateral knee pain. However, no diagnosed knee disability was found. The Veteran complained of bilateral knee pain at his June 1995 separation examination. However, no diagnosed knee disability was found. The Veteran was provided with a VA examination in September 1995. At the examination, upon a review of the claims file, subjective interview, and objective testing, the examiner found that the Veteran did not have any diagnosed knee disabilities. The Veteran complained of bilateral knee pain since an alleged in-service injury in 1994. Range of motion testing showed flexion to 145 degrees and extension to 0 degrees, all within normal limits. No painful motion was reported. There were no objective findings of instability. X-ray showed some bone spurring in the left knee. The examiner opined that the Veteran’s knee pain was most likely due to internal derangement and a past meniscus tear. The examiner did not provide a basis for the diagnosis of the internal derangement or past meniscus tear, as neither were shown in previous medical records or diagnosed on the current examination. The Veteran submitted to a January 1996 enlistment examination for the National Guard in which the Veteran made no knee complaints and no knee disabilities were diagnosed. The Veteran was provided with an additional VA examination in July 1996. At the examination, upon a review of the claims file, subjective interview, and objective testing, the examiner found that the Veteran did not have any diagnosed knee disabilities. The Veteran complained of aching knees for which he took ibuprofen to treat the pain. The Veteran indicated that he had experienced swelling which necessitated draining on one occasion. X-rays were within normal limits. Range of motion testing showed flexion to 140 degrees and extension to 0 degrees, all within normal limits. No painful motion was reported. There were no objective findings of instability. However, there was pain noted with lateral movements. The examiner questioned whether the Veteran may have degenerative joint disease, but was unable to confirm. A review of the Veteran’s outpatient treatment records shows that he has complained of bilateral knee pain throughout the period on appeal. The Veteran was seen in August 2003 where he reported knee pain without a history of injury. Range of motion was normal and no instability was noted. However, x-ray showed evidence of osteophytes. In an August 2003 National Guard examination, the Veteran was diagnosed with patellofemoral pain syndrome, with pain as the only noted symptom. In October 2003, the Veteran reported that he had injured his right knee in 1987 prior to service and that he had reaggravated it when he twisted it in service. He was then diagnosed with chondromalacia. In an April 2004 National Guard record, it was noted that the Veteran was provisionally diagnosed with degenerative joint disease in the knees, but no confirmation of such or any other symptoms than pain. In June 2006, the Veteran was seen for complaints of pain and occasional buckling in the bilateral knees. There was a finding of crepitus, but no confirmed finding of any loss of motion or instability. The Veteran was provided with an additional VA examination in January 2007. The Veteran complained of chronic knee pain, but stated that he had decided to not seek treatment. His knees were not examined at that time. Outpatient treatment records since that time to the Veteran’s January 5, 2010 VA examination that served as the basis for his higher evaluations have only shown the Veteran’s bilateral knees to manifest in objective pain and crepitus, with no showings of loss of range of motion below normal limits, instability or subluxation, non union, malunion, dislocation, ankylosis, or incapacitating exacerbations. After having carefully reviewed the evidence of record, the Board finds that the Veteran’s bilateral knee osteoarthritis more nearly approximates evaluations of 10 percent each for the entire period of appeal prior to January 5, 2010. The evidence of record shows that the Veteran’s bilateral knee disabilities were primarily manifested by painful motion during this time period. Thus, in accordance with the Rating Schedule, the Veteran would only qualify for an evaluation of 10 percent prior to January 5, 2010 based upon the objective finding of painful motion with his arthritis. In order to warrant higher evaluations prior to January 5, 2010, the Veteran’s bilateral knee osteoarthritis must show increased symptoms such as loss of range of motion in flexion to 30 degrees or less or in extension to 15 degrees or higher, instability or subluxation, non union, malunion, dislocation, ankylosis, or incapacitating exacerbations. As the medical evidence of record has not shown such manifestations during the period of appeal, higher evaluations are, thus, not warranted. The Board has considered whether staged ratings are warranted, but finds that they are not. The most probative evidence of record does not show that there are distinct periods of time where evaluations higher than 10 percent evaluations are warranted. The evidence of record does not warrant ratings in excess of that assigned for the Veteran’s bilateral knee osteoarthritis at any time during the period pertinent to this appeal. 38 U.S.C. § 5110 (2012). REASONS FOR REMAND At the outset the Board notes that the RO had characterized this issue as entitlement to a TDIU prior to March 11, 2016, when the Veteran’s total combined disability rating was 100 percent. However, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the ruling in Bradley recognized that if the record evidence supported a finding of TDIU based solely upon a single service-connected (rated at less than 100 percent under the rating schedule), then such a TDIU rating may serve as the factual predicate for an award of SMC pursuant to 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In other words, while a finding of TDIU based on a single service-connected disability is implicated, the ultimate determination is one of whether entitlement to SMC is warranted under section 1114(s). As such, the inquiry that follows will address whether entitlement to a TDIU was warranted for the entire period on appeal, including from March 11, 2016, in accordance with the holding in Bradley discussed above. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of determining one 60 percent disability, disabilities resulting from a common etiology or a single accident are considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. Here, the claim of entitlement to a TDIU has been previously adjudicated in the Veteran’s statement of the case (SOC) and subsequent supplemental statements of the case (SSOCs). However, the RO appears to have incorrectly presumed that the Veteran met the schedular requirements for TDIU throughout the entire period of appeal. In this regard, it is noted that the Veteran meets the threshold requirements only from May 9, 2013 to present and does meet the threshold requirements for a TDIU prior to that time. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for asthma, hiatal hernia, a left eye injury, left knee osteoarthritis, right knee osteoarthritis, tinnitus and left otitis media, and his combined rating for VA compensation purposes is 40 percent prior to January 19, 1996; 50 percent prior to April 15, 2013; 60 percent prior to May 9, 2013; 90 percent prior to March 11, 2016; and 100 percent thereafter. For the period from May 9, 2013 to present, the inquiry automatically moves to the question of employability. However, for the period prior, the next part of the inquiry turns upon a showing that the individual is unable to secure and follow a substantially gainful occupation due to service-connected disabilities in consideration of an extraschedular basis. 38 C.F.R. § 4.16 (b). During the time period in question, the Veteran has submitted statements indicating that he was unemployable due to his service-connected back disability and asthma. Additionally, the Veteran submitted the results of a private March 2017 vocational assessment which appeared to indicate that the Veteran’s service-connected back disability and asthma present distinct problems that may preclude employment in any setting during the time period prior to May 9, 2013. In the May 2015 SOC and subsequent February 2017, March 2017, and November 2017 SSOCs, the RO failed to address the issue of extraschedular consideration, despite the fact showing that, prior to May 9, 2013, the Veteran did not meet the schedular requirements and there was no consideration of whether to submit the Veteran’s claim to VA’s Director, Compensation Service. Given that the evidence reflects that the Veteran may have experienced difficulty obtaining and maintaining employment due to his service-connected disabilities from prior to May 9, 2013, and given that the Board is precluded from awarding extraschedular TDIU in the first instance, on remand the Veteran’s claim must be referred to VA’s Director, Compensation Service, for extraschedular consideration of a TDIU for the period prior to May 9, 2013 under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for entitlement to an extraschedular TDIU for the rating period prior to May 9, 2013, to the Director, Compensation Service, for consideration TDIU under 38 C.F.R. § 4.16 (b). A copy of the Director’s decision on this claim must be included in the electronic claims file. The Director is asked to consider whether the Veteran’s disabilities warrant an extraschedular TDIU for the rating period prior to May 9, 2013. 2. After completing the above development and any other development deemed necessary, readjudicate the issue for extraschedular TDIU for the entire period of appeals. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel