Citation Nr: 20006345 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 18-18 991 DATE: January 28, 2020 ORDER New and material has not been received sufficient to reopen the claim for entitlement to service connection for chronic sinusitis, and the claim is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to a disability rating in excess of 10 percent for bipartite patella and degenerative joint disease of the right knee is denied. Entitlement to a disability rating in excess of 10 percent for bipartite patella and degenerative joint disease of the left knee is denied. Entitlement to a disability rating in excess of 10 percent for right knee instability is denied. Entitlement to a separate 10 percent disability rating for left knee instability from October 31, 2014 is granted. Entitlement to a separate 10 percent disability rating for symptomatic removal of right knee semilunar cartilage from October 31, 2014 is granted. REMANDED Entitlement to service connection for a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In the last final August 2010 rating decision, the RO declined to reopen a claim for service connection for chronic sinusitis; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final August 2010 rating decision is cumulative or redundant of the evidence of record, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for chronic sinusitis. 3. The competent and credible evidence does not demonstrate that the Veteran’s diabetes mellitus, type II, had its onset during active duty service, or is otherwise etiologically related to service. 4. Throughout the appeal period, the Veteran’s bipartite patella and degenerative joint disease of the right knee was manifested by chronic pain and flexion limited to 100 degrees, at worst, with no objective evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. 5. Throughout the appeal period, the Veteran’s bipartite patella and degenerative joint disease of the left knee was manifested by chronic pain and flexion limited to 110 degrees, at worst, with no objective evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. 6. Throughout the appeal period, the Veteran’s right knee instability was manifested by slight instability, at worst. 7. As of October 31, 2014, the Veteran had mild left knee instability. 8. As of October 31, 2014, the Veteran had symptomatic removal of the right knee semilunar cartilage. CONCLUSIONS OF LAW 1. The August 2010 rating decision that declined to reopen the claim for service connection for chronic sinusitis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has not been received to reopen the claim for service connection for chronic sinusitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a disability rating in excess of 10 percent for bipartite patella and degenerative joint disease of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. 5. The criteria for a disability rating in excess of 10 percent for bipartite patella and degenerative joint disease of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. 6. The criteria for a disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257. 7. The criteria for a separate 10 percent disability rating for left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257. 8. The criteria for a separate 10 percent disability rating for symptomatic removal of the right knee semilunar cartilage have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to May 1982 and from January 1985 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran’s TDIU claim is part and parcel of the increased rating claim on appeal, and is properly before the Board. The Board notes that additional VA treatment records have been associated with the claims file since the February 2018 statement of the case. However, the Board finds that readjudication of the claims by the Agency of Original Jurisdiction (AOJ) is not warranted as the newly submitted evidence is cumulative and non-pertinent. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim 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 his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “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 fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b), (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, 20.302 (a) (2017). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117 18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. In the August 2010 rating decision, the RO declined to reopen the claim for service connection for chronic sinusitis because the evidence did not show that the Veteran’s pre-existing sinusitis was aggravated by his military service. That decision is final. The Veteran did not file a timely NOD, and new and material evidence pertaining to the Veteran’s claim was not received within one year of the rating decision. Since the Veteran’s prior final denial in August 2010, the record includes additional lay statements and arguments, VA medical records, to include VA examinations for the Veteran’s knee disabilities, private treatment records, a letter from the Social Security Administration, VA records pertaining to the Veteran’s vocational rehabilitation and education, and copies of previously associated service medical records. The Veteran did not submit new contentions pertaining to the etiology of his chronic sinusitis. Further, the other newly received evidence does not show or suggest that the Veteran’s pre-existing chronic sinusitis was aggravated by his active duty service. Thus, the Board finds that these records, while new, are cumulative and redundant of the evidence of record at the time of the last prior final decision. Further, the additional records do not relate to an unestablished fact and do not raise a reasonable possibility of substantiating the claim. Consequently, the claim may not be reopened, because no new and material evidence has been received suggesting that the Veteran’s pre-existing chronic sinusitis was aggravated by his active duty service. See Annoni v. Brown, 5 Vet. App. 463 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 – 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service treatment records do not show complaints of, treatment for, or a diagnosis of diabetes mellitus, type II. According to VA treatment records from May 2003 to December 2019, the Veteran has a current diagnosis of diabetes mellitus, type II. In May 2003, the Veteran arrived with a high blood sugar level and was given a diagnosis of diabetes that was to be confirmed with his hemoglobin A1C results were returned. In June 2003, it was noted that the Veteran’s hemoglobin A1C and glucose levels were normal. In March 2008, the Veteran was found to have pre-diabetes, and obesity and a family history of diabetes were noted. In June 2009, he was diagnosed with borderline diabetes mellitus, type II. In November 2010, it was noted that the Veteran’s diabetes began in April 2010. In August 2012, he was diagnosed with new onset diabetes mellitus. According to private treatment records from February 2014 to March 2019, the Veteran was noted to have diabetes mellitus, type II. The Veteran did not submit lay statements pertaining to the etiology of his diabetes mellitus, type II. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for diabetes mellitus, type II, is warranted. The evidence shows that the Veteran has a current diagnosis of diabetes mellitus, type II. As an initial matter, service treatment records do not show complaints of, treatment for, or a diagnosis of diabetes mellitus, type II. Further, the Veteran has not contended that his diabetes had its onset or was incurred during his active duty service. Furthermore, the earliest indication in the medical evidence of diabetes is 2003, approximately 18 years after discharge from active duty service, and the earliest indication of a diagnosis of diabetes is 2010, approximately 25 years after discharge from active duty service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). A VA examination under the standards of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) is not warranted in this case. There is no credible, probative evidence suggesting a relationship between active duty service and the Veteran’s currently diagnosed diabetes mellitus, type II. In fact, the Veteran has not even submitted lay statements contending that his diabetes mellitus, type II, had its onset in or was incurred during active duty service. Thus, the Board finds that the duty to assist is not invoked, even under McLendon, as here the evidence fails the McLendon analysis for these claims. A mere conclusory generalized statement that a service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for diabetes mellitus, type II. Consequently, the benefit-of-the-doubt rule does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). As an initial matter, the Board notes that the Veteran was assigned 10 percent disability ratings for right and left knee bipartite under Diagnostic Codes 5259-5260 until February 6, 2018, when the 10 percent disability ratings were continued but were rated under Diagnostic Codes 5003-5260 for right and left knee bipartite and degenerative joint disease. The Veteran was assigned a 10 percent disability rating for right knee instability under Diagnostic Code 5257 until February 6, 2018, when the 10 percent disability rating was continued but rated under Diagnostic Codes 5003-5257. 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 rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 rates degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Code 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling. Id. The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. This is the only available evaluation under Diagnostic Code 5258. A 10 percent evaluation is warranted for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. This is the only available evaluation under Diagnostic Code 5259. Diagnostic Codes 5256, 5262, and 5263 also address ratings for knee disabilities. However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263); thus, the Diagnostic Codes pertaining to such impairments are not applicable. According to private treatment records from July 2013 to July 2019, the Veteran had degenerative joint disease in both knees and bilateral knee pain. In July 2018, the Veteran reported bilateral knee pain and it was noted he had full range of motion in his bilateral lower extremities. In July 2019, it was noted that the Veteran had full range of motion in his bilateral lower extremities with mild pain in his left knee. According to VA treatment records from January 2015 to November 2019, the Veteran consistently reported knee pain. In January 2017, he reported severe bilateral knee pain which caused difficulties sleeping and walking. In February 2017, the Veteran reported constant knee pain and a knee examination revealed full extension in both knees, flexion to 135 degrees in the right knee, and flexion to 140 degrees in the left knee. There was no effusion or laxity. In the May and November 2019 review of systems for the musculoskeletal system, the Veteran and normal range of motion. In an October 2014 VA examination, the Veteran was diagnosed with bipartite patella in both knees and a right knee torn medial meniscus. He reported flare ups which resulted in increased bilateral knee pain with prolonged sitting, standing, and walking. The Veteran also reported decreased range of motion with prolonged sitting, standing, walking, and bending. Upon initial range of motion testing, the Veteran had flexion to 120 degrees and extension to 0 degrees in both knees. Pain was noted on examination (flexion), which caused functional loss. It was noted that the Veteran experienced increased knee pain with stair climbing and knee bending when ambulating. Objective evidence of pain with weight bearing and localized tenderness or pain on palpation was noted. Specifically, sharp and aching pain located at the anterior, lateral, and medial side of the knees with weight bearing was reported. Additional functional loss was found after repetitive use testing both knees due to pain and weakness. However, no additional loss of range of motion was found. While the examination was not conducted during flare ups, the examiner found that pain, fatigue, and weakness significantly limited functional ability with flare ups. The examiner estimated that the Veteran’s flexion was to 100 degrees in the right knee and to 110 degrees in the left knee, and extension was to 0 degrees in both knees. The examiner did not find muscle atrophy, muscle loss, or ankylosis. A history of slight lateral instability in both knees were noted and upon joint instability testing, instability in both knees was found. Specifically, 1+ medial and lateral instability was found in the right knee. The Veteran had a meniscal condition (i.e., meniscal tear) that resulted in pain and swelling. He underwent a meniscectomy in 2003. He regularly used a brace and there was objective evidence of crepitus in both knees, more in the right knee than the left. The functional impact of the Veteran’s knee disabilities was increased bilateral knee pain with prolonged standing. The Veteran reported that he was required to stand at work for 10-hour shifts. In a November 2015 private examination conducted by Dr. J. M. Hatheway, the Veteran was diagnosed with bilateral osteoarthritis and bipartite patellae. Dr. Hatheway noted symptoms of knee pain, persistent weakness with bending, and pain caused by prolonged standing. He found that the Veteran’s flexion and extension were limited to 15 degrees in both knees due to pain. In the range of motion section, the selections available were 15 degrees, 30 degrees, and 45 degrees for flexion and 15 degrees, 20 degrees, 30 degrees, and 45 degrees for extension. Functional impairment included difficulty with stairs and standing for more than 15 minutes, and no bending. Dr. Hatheway found that the Veteran’s impairments were likely to produce “good” and “bad” days, resulting in the Veteran being absent for work less than once a month due to accommodations. Dr. Hatheway also opined that the earliest the description of symptoms and limitations noted in his examination applied was 2013. In a January 2017 VA examination, the Veteran was diagnosed with bipartite patellae in both knees and a right knee instability. He reported flare ups which resulted in him receiving cortisone shots in both knees every six months for the past three years, wearing braces on both knees, both knees giving out daily, pain rated at 10 out of 10 in both knees, and difficulties bending down and getting into cars. The Veteran also reported limitations in prolonged standing and walking and difficulties bending. Upon initial range of motion testing, the Veteran had flexion to 120 degrees and extension to 0 degrees in both knees. Pain was not noted on examination. There was no evidence of pain with weight bearing, but there was evidence of localized tenderness or pain on palpation. Specifically, pain at the joint lines was reported. Additional functional loss or loss of range of motion was not found after repetitive use testing. The examination was conducted during a flare up. The examiner did not find muscle atrophy, muscle loss, ankylosis, or crepitus. Joint instability in either knee was also not found. A history of slight lateral instability in both knees were noted and upon joint instability testing, instability in both knees was found. The Veteran had a right knee meniscal condition (i.e., meniscal tear) that resulted in pain and swelling. He underwent a right knee meniscectomy in 2003. He regularly used a brace and cane. The functional impact of the Veteran’s knee disabilities were limited prolonged standing, prolonged walking, and squatting. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the March 2018 substantive appeal, the Veteran’s representative contended that the Veteran was entitled to 30 percent disability ratings in both knees based on the November 2015 private examination showing flexion limited to 15 degrees in both knees. In an October 2019 lay statement, the Veteran reported that he was barely able to get out of bed to go to his part-time job at Enterprise Rental Car. 1. Entitlement to disability ratings in excess of 10 percent for bipartite patella and degenerative joint disease of the right and left knees is denied. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s right and left knee bipartite patella and degenerative joint disease do not warrant a disability rating in excess of 10 percent under Diagnostic Codes 5003-5260. In other words, the Veteran’s right and left knee bipartite patella and degenerative joint disease did not manifest in flexion limited to 30 degrees, at least. At most, the Veteran’s flexion was limited to 100 degrees in the right knee and 110 degrees in the left knee. The Board acknowledges that the November 2015 private examination indicates that the Veteran’s flexion and extension in both knees were limited to 15 degrees due to pain. However, the Board finds that this examination lacks probative value as Dr. Hatheway did not indicate whether he used a goniometer. VA regulations provide that the use of a goniometer in the measurement of limitation of motion is “indispensable” in VA examinations. 38 C.F.R. § 4.46. Further, November 2015 findings are not supported by contemporaneous treatment records and Dr. Hatheway did not provide an underlying rationale as to why his findings applied back to 2013. Additionally, a higher 20 percent rating under Diagnostic Code 5003 is not warranted as the evidence does not show occasional incapacitating exacerbations. The Board is sympathetic to the Veteran’s reported knee symptomatology; however, there is no basis upon which to award a higher 20 percent disability rating for his bilateral bipartite patella and degenerative joint disease under Diagnostic Codes 5003-5260. The preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the Veteran’s right and left knee bipartite patella and degenerative joint disease under Diagnostic Codes 5003-5260 throughout the appeal period. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 10 percent for right knee instability is denied. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran’s right knee instability does not warrant a disability rating in excess of 10 percent under Diagnostic Codes 5003-5257. In the October 2014 VA examination, the examiner found that the Veteran had a history of slight instability in his right knee and that he had 1+ medial and lateral right knee instability. Further, medical evidence of record, to include the November 2015 private examination and January 2017 VA examination, did not indicate that the Veteran’s right knee instability could be characterized as moderate or slight. In fact, the other examinations did not find right knee instability. As such, the Board finds there is no basis upon which to award a disability rating in excess of 10 percent for the Veteran’s right knee instability under Diagnostic Codes 5003-5257. The preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s right knee instability under Diagnostic Codes 5003-5257 throughout the appeal period. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to separate 10 percent disability ratings for left knee instability and symptomatic removal of right knee semilunar cartilage from October 31, 2014 is granted. Based on a careful review of all the subjective and clinical evidence, the Board finds that separate 10 percent disability ratings for left knee instability and symptomatic removal of right knee semilunar cartilage are warranted under Diagnostic Codes 5257 and 5259, respectively. In the October 2014 VA examination, the examiner found that the Veteran had slight left knee instability. The medical evidence of record, to include the November 2015 private examination and January 2017 VA examination, does not show that the Veteran had moderate or severe left knee instability. As such, the Board finds that the Veteran has slight left knee instability and a separate 10 percent disability rating under Diagnostic Code 5257 is warranted. Further, in the same October 2014 VA examination, it was found that the Veteran had a right knee meniscal condition, specifically a right knee meniscal tear status post meniscectomy, which had symptoms of pain and swelling. As such, the Board finds that the Veteran has symptomatic removal of right knee semilunar cartilage and a separate 10 percent disability rating under Diagnostic Code 5259 is warranted. As a 10 percent rating is the highest allowable under Diagnostic Code 5259, a rating in excess of 10 percent under this Diagnostic Code is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Further, as this rating contemplates symptoms other than painful motion, it does not violate the rule against pyramiding. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board finds that a higher 20 percent rating under Diagnostic Code 5258 is not warranted as there is no evidence of frequent episodes of “locking,” pain, and effusion into the joint. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for separate 10 percent ratings, but no higher, for left knee instability and symptomatic removal of right knee semilunar cartilage have been met from October 31, 2014. However, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s left knee disability under Diagnostic Code 5257 for any period of the appeal. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In the February 2013 counseling narrative report, it was found that the Veteran had a serious employment handicap due to, in part, his service-connected knee disabilities. As such, the issue of entitlement to a TDIU has been raised by the record and the Board’s jurisdiction over this issue is proper. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Board notes that the Veteran has not been sent notice for his TDIU claim, has not completed a TDIU form, and the issue has not been addressed by the RO. Therefore, on remand, the RO should comply with the duties to notify and assist in connection with the Veteran’s TDIU claim. Thus, the Board finds that adjudication of the Veteran’s claim for a TDIU would be premature and must be deferred. (Continued on the next page)   The matters are REMANDED for the following action: Provide the Veteran appropriate notice in connection with the claim for TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of this claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.