Citation Nr: 21003485 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-16 988 DATE: January 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee injury residuals with chondromalacia patella is denied. Entitlement to a rating in excess of 10 percent for right knee injury residuals with chondromalacia patella is denied. Entitlement to a separate rating of 10 percent, but no higher, for left knee injury residuals with chondromalacia patella based upon instability from July 10, 2008 is granted. Entitlement to a separate 10 percent rating, but no higher, for right knee injury residuals with chondromalacia patella based upon instability from March 26, 2009, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s left knee injury residuals with chondromalacia patella is manifested by complaints of pain and limitation of motion without evidence of ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 2. The Veteran’s right knee injury residuals with chondromalacia patella is manifested by complaints of pain and limitation of motion without evidence of ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. 3. With reasonable doubt resolved in favor of the Veteran, from July 10, 2008, the Veteran’s left knee injury residuals with chondromalacia patella is productive of no more than slight instability. 4. With reasonable doubt resolved in favor of the Veteran, from March 26, 2009, the Veteran’s right knee injury residuals is productive of no more than slight instability. 5. For the entire appeal period, the Veteran’s service-connected disabilities are not shown to have precluded him from engaging in substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee injury residuals with chondromalacia patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Codes (DCs), 5099-5014. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee injury residuals with chondromalacia patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DCs, 5099-5014. 3. From July 10, 2008, the criteria for entitlement to a separate 10 percent rating for left knee injury residuals with chondromalacia patella based upon instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257. 4. From March 26, 2009, the criteria for entitlement to a separate 10 percent rating for right knee injury residuals with chondromalacia patella based upon instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257. 5. The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps form August 1983 to June 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In November 2014, August 2017, September 2018, and December 2019, the Board remanded these matters to the RO for further development. As an initial matter, the record reflects that the Veteran received a letter in October 2020 indicating that he requested a Travel Board hearing. Upon further review of the record, the Veteran does not have a pending hearing request. In another October 2020 letter, VA also notified the Veteran that his appeal would be adjudicated based on the other evidence of record, including his prior December 2012 hearing. Therefore, the Board will proceed with the Veteran’s appeal accordingly. 1. Entitlement to ratings in excess of 10 percent for left and right knee injury residuals with chondromalacia patella and entitlement to separate 10 percent ratings for left and right knee injury residuals with chondromalacia patella based upon instability The Veteran seeks increased ratings for his service-connected right and left knee disabilities. By way of background, VA received the Veteran’s non-initial increased rating claim for his right and left knee disabilities on March 26, 2009. As such, the Board will consider the Veteran’s symptomatology from this date, to include the one-year period prior to this date (i.e., from March 26, 2008). 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 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. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 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. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran is currently in receipt of 10 percent ratings for his left and right knee disabilities under DCs 5099-5014. The hyphenated 5099-5014 DC indicates that the Veteran's left and right knee injury residuals with chondromalacia patella are rated, by analogy, under the criteria for osteomalacia according to DC 5014. Under DC 5014, osteomalacia is rated on the limitation of motion of the affected parts as degenerative arthritis under DC 5003. 38 C.F.R. §§ 4.20, 4.71a. Under DC 5003, degenerative or traumatic arthritis established by x-ray findings will be rated by the limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 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 rating is warranted for x-ray evidence of arthritis with evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of the involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, 5014. Disabilities of the knee are also rated under DCs 5256 through 5263. 38 C.F.R. § 4.71a. Specifically, and pertinent to the Veteran’s claim, DC 5257 provides that slight recurrent subluxation or lateral instability of a knee warrants a 10 percent. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The Board notes that because the terms “slight,” “moderate,” and “severe” are not defined in the Rating Schedule, instead of applying a mechanical formula, the Board must evaluate all the evidence of record to ensure that its adjudication of an increased rating claim is equitable and just. See 38 C.F.R. § 4.6. Additionally, limitation of extension of the knee is rated under DC 5261 and limitation of flexion of the knee is rated under DC 5260. 38 C.F.R. § 4.71a. Under these codes, a 10 percent rating is warranted when flexion of the knee is limited to 45 degrees or when extension is limited to 10 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees or when extension is limited to 15 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees or when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees and a 50 percent rating is warranted when extension is limited to 45 degrees. Id. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The Board also notes that separate ratings for knee disabilities may also be assigned for a disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Turning to the evidence of record, on July 10, 2008, the Veteran sought hospital treatment for his left knee pain following an automobile accident. See July 2008 private treatment records. Upon examination, his left knee flexion was to 90 degrees and his knee was stable to valgus and varus stress. His x-rays revealed no fracture, subluxation, nor joint effusion. He was diagnosed with a left knee strain with some mild degenerative joint disease and was ordered a left knee immobilizer. Thereafter, the Veteran continued to report chronic knee pain. His spouse also reported that she had medical training, and, in her opinion, the Veteran had severe arthritis in his knees especially with weather changes. See May 2009 Statement in Support of Claim. She noted that he had been on crutches many times due to his knees and experienced constant pain. See id. In June 2009, the Veteran also reported that his right knee sometimes gave way and complained of intermittent left knee pain. See June 2009 VA treatment record. Upon examination, he had mild crepitus on the right knee, slight laxity on the left knee, and full range of motion bilaterally. In July 2009, the Veteran underwent a VA examination to assess the severity of his knee conditions. At the time of the examination, he reported pain, weakness, stiffness, swelling, heat, instability, giving way, fatigability, and lack of endurance. He denied flare-ups and did not use ambulatory aids. Range of motion testing of the left knee revealed flexion to 135 degrees and extension to zero degrees while range of motion testing of the right knee revealed flexion to 130 degrees and extension to zero degrees. There was objective evidence of painful motion and the examiner concluded the Veteran had a slight decrease in range of motion with pain. There was no evidence of ankylosis, effusion, instability, weakness, guarding of movement, or abnormal movement. Indeed, the Veteran had a normal gait with no functional limitations on standing and walking. The examiner also noted that although the Veteran reported his continuous pain resulted in an inability to do anything, his physical examination was normal. Subsequent VA treatment records reflect that the Veteran experienced painful motion and some weakness. For instance, a July 2009 VA orthopedic surgery consultation indicates that the Veteran had full range of motion with pain described at the limits of motion. He had no effusion, atrophy, instability, nor pain with stress. McMurray, Drawer, and Lachman testing were negative. An August 2009 VA treatment record further reflects the Veteran’s reports that weather changes increased his knee pain and that he experienced knee buckling. On examination, he had worse right knee pain but more left knee weakness. Objective evidence showed that his knee popped with movement but that he had no laxity. He had mild crepitus on the right knee. In December 2009, the Veteran reported that his right knee popped and caused pain while his left knee gave way. See December 2009 VA treatment record. He had some bilateral knee crepitus but good range of motion. An April 2010 VA treatment record further reflects that the Veteran had slightly decreased range of motion in both knees with some crepitus. In September 2011, the Veteran received a left knee steroid injection and was given a left knee wrap and brace to use for his left knee pain during ambulation. He had good range of motion. See September 2011 VA treatment records. December 2011 right knee x-rays indicated no significant abnormality while March 2012 left knee MRI findings indicated no evidence of ligamental or meniscal tears nor joint effusion. He had left knee septated multiple cystic structures at the posterior and medial aspect of the knee joint, which suggested bursal cysts. See March 2012 VA treatment note. In his June 2012 VA Form 9, the Veteran reported that his knee pain had worsened in severity and that some days he could hardly walk. A month later, in July 2012, he reported that while he experienced bilateral knee pain, on and off, he had lately experienced severe problems with his right knee and reported falling in December 2011 after his knee gave way. See July 2012 VA treatment note. Examination showed right knee mild tenderness on touching and pain with passive movement without focal swelling. His left knee, on the other hand, was noted as normal. He was also ordered a knee brace. At the December 2012 Board hearing, the Veteran testified that he had a brace and cane for each leg and that pain was his predominant knee symptom. See December 2012 Board hearing transcript, p. 4. He testified that his right knee occasionally gave out, which had caused him to fall several times, while his left knee also felt weak at times. Id. at p 4, 12. He also reported experiencing weight bearing problems and noted numbness, weakness, clicking, and popping. See id. at pp 5-6. He further explained that his right knee was roughly the same as his left knee in terms of flexion and approximated that his flexion was limited to 45 degrees in both knees due to pain. Id. a p. 13. In August 2013, the Veteran reported that his left knee gave way causing him to fall. See August 2013 VA treatment records. Follow-up examination showed that his left kneecap was a bit hypertrophied but there was no redness, effusion, or laxity. X-rays also indicated that he did not have any acute fractures or dislocations. See August 2013 VA urgent care note. In August 2014, the Veteran requested a right knee brace. See August 2014 VA treatment record. Upon examination, he had no swelling or tenderness of his knee joints or lower back and there was no restriction of movement. Thereafter, a September 2014 VA orthopedic surgery consultation reflects that the Veteran reported falling down the stairs and injuring his right knee. He reported that his right knee bothered him mostly with prolonged weightbearing and that it occasionally swelled and gave out. He had been wearing a knee brace but did not have much problem at present with his left knee. Examination of the right knee revealed no swelling, effusion, nor instability. Both his right and left knee had full range of motion. He received a right knee corticosteroid injection that month. See September 2014 VA treatment record. In November 2014, the Veteran reported his left knee bothered him more than his right knee and that his left knee tended to give out. See November 2014 VA surgery note. Specifically, he complained that his knee got weak and occasionally experienced numbness, tingling, and popping. He did not have any significant effusion upon examination and his ligaments were stable. He had minimal crepitus on flexion and extension. While he used knee braces and took anti-inflammatories, he could not golf and could not do some of the things he used to do because of his knee pain. In July 2015, he reported that his left knee again buckled and caused him to fall two weeks prior. See July 2015 VA treatment record. He was afforded another VA examination in November 2015. Regarding the Veteran’s right knee, he reported popping, swelling, and flare-ups a couple of times a month with increased pain lasting for about two or three days. Regarding his left knee, the Veteran reported intermittent flare-ups once a week with increased pain usually caused by change of weather and increased activity level. He felt that his left knee was numb, weak, and would give out now and then. For both knees, he wore his knee braces whenever he had flare-ups or felt that his knee was weak. The examiner noted that all the Veteran’s current problems included pain, swelling, and his knees giving out, but that none of the orthopedic surgeons in the record had demonstrated instability issues. Range of motion testing showed right and left knee flexion to 140 degrees and extension to zero degrees without evidence of pain. There was also no evidence of pain on weight-bearing. The VA examiner was unable to provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups. There was no evidence of ankylosis nor a meniscal condition in either knee, but he had documented left knee crepitus. Muscle strength and stability testing were also normal. The examiner found that the Veteran’s knee conditions impacted his ability to perform work because the Veteran reported experiencing pain with prolonged standing and walking and was unable to play golf. However, the examiner determined that the Veteran’s current knee condition should not preclude him from full time work, including the type he performed until his prior employment closed. The Veteran again underwent a VA examination in June 2019. At the time of the examination, he reported flare-ups in the form of increased knee pain with swelling when the weather changed. He regularly used a brace for his knee conditions. Range of motion testing for both the right and left knee showed flexion to 120 degrees and extension to 0 degrees. The examiner noted that flexion and extension exhibited pain and that pain caused functional loss. There was evidence of pain with weight bearing but no evidence of pain with passive range of motion or when the joints were used in non-weight bearing. The examiner also found that pain, fatigue, weakness, and incoordination significantly limited right and left knee functional ability with repeated use over time and during flare-ups but was unable to estimate additional range of motion loss. For repeated use over time, the examiner noted that the Veteran was unable to describe actual range of motion loss but stated that the distance he could walk without resting due to pain declined by 50 percent. The VA examiner found that additional contributing factors of the Veteran’s disability included less movement than normal, instability of station, and disturbance of locomotion. Muscle strength and joint stability testing were normal for both knees. There was also no history of recurrent subluxation, lateral instability, nor recurrent effusion. However, the Veteran’s knee conditions impacted his ability to work because the Veteran experienced knee pain with climbing stairs, kneeling, and squatting. Thereafter, a June 2020 VA treatment record reflects that the Veteran continued to experience pain in his left lower leg/ankle from a September 2018 motorcycle accident but that he had full range of motion of the lower extremities. He had an unsteady gait and was noted to not be using any assistive devices. The Veteran was most recently afforded a VA examination in June 2020. At the time of the examination, he reported flare-ups in the form of increased knee pain with cold weather and that during flare-ups he could only hang his legs on the side of his bed (90 degree knee bend) and was unable to stand for several hours. The Veteran regularly used a cane and brace for his knee conditions. Range of motion testing for the right and left knee revealed flexion to 120 degrees and extension to zero degrees. The examiner noted pain with flexion and extension and that pain caused functional loss. There was also evidence of pain with weight-bearing but no evidence of pain with passive range of motion or with non-weightbearing. The examiner further found that pain, fatigue, and lack of endurance significantly limited left and right knee functional ability with repeated use over a period of time and during flare-ups. Range of motion measurements after repeated use over time were estimated as zero to 110 degrees and estimated during flare-ups as zero to 90 degrees. Additional contributing factors included less movement than normal, disturbance of locomotion, and interference with standing. There was no evidence of crepitus nor ankylosis. Right knee muscle strength testing was normal while the Veteran’s left knee showed a reduction in muscle strength with active movement against some resistance. The Veteran did not have muscle atrophy, instability, nor any meniscal condition in either knee. The examiner further found that the Veteran did not have a history of recurrent effusion, lateral instability, and/or recurrent subluxation. The examiner determined that the Veteran’s disability impacted his ability to work as he reported difficulty with climbing stairs and walking long distances and was unable to squat. A. Right and Left Knee Injury Residuals with Chondromalacia Patella Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for either the Veteran’s right or left knee disabilities. In this regard, the evidence shows that the Veteran had painful motion that resulted in some functional loss. However, the Veteran’s range of motion limitations, particularly the range of motion testing, as documented in the medical records, do not meet or more closely approximate the limitations that would be associated with a higher rating. Specifically, the evidence shows that throughout the appeal period, the Veteran had full extension of his right and left knee. Additionally, the various flexion readings do not convey that the Veteran’s right or left knee flexion is so limited as to warrant a disability rating of 20 percent or higher, as his flexion has been, at worst, 90 degrees, and/or 45 degrees when considering the Veteran’s December 2012 Board testimony as to where he felt pain with flexion. To reiterate, a 20 percent rating under DC 5260 contemplates flexion limited to 30 degrees. The Veteran’s right and left knee flexion has not resembled 30 degrees during the appeal period nor has been documented to resemble limitations associated with a compensable rating. Consequently, the Board finds that the Veteran is not entitled to higher or separate ratings for his right or left knee disability under DC 5260 or 5261 at any point in the appeal period. Additionally, as the evidence does not show ankylosis, dislocation of the semilunar cartilage, effusion into the joint, impairment of the tibia or fibula, or genu recurvatum for either knee, higher or separate ratings under DCs 5256, 5258, 5259, 5262, and 5263, respectively, are not warranted. In reaching this conclusion, the Board is cognizant that the evidence shows the Veteran had functional loss causing limitation of motion due to pain, which was exacerbated during flares and repetitive use. However, the Veteran’s range of motion limitations, particularly the range of motion testing, as documented in the medical records, as well as the estimates provided after repeated use and during flare-ups, do not meet or more closely approximate the limitations that would be associated with higher ratings or compensable ratings under DC 5260 and 5261. The Board has also considered the implications of the decision in Correia v McDonald, 28 Vet. App. 158, 168 (2017), in which the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 28 Vet. App. 158 (2016). The Board finds that the June 2020 VA examination contains sufficient findings under Correia as the examiner provided range of motion measurements and addressed Correia considerations in rendering findings that there was no evidence of pain with passive range of motion or with non-weightbearing. The Board notes that where no pain was noted, as with this examination, the additional range of motion testing would not result in additional loss of range of motion. Further, active range of motion testing results tend to produce the "worst case scenario" of impairment, and thus would tend to support the highest possible rating. The Board is also cognizant of the fact that the June 2020 VA examiner found that pain caused additional functional loss, including pain with weight-bearing, but did not offer an opinion as to the degree of additional functional loss due to such pain. The Board, therefore, assigns probative weight to the Veteran’s December 2012 Board testimony approximation that his flexion is limited to 45 degrees due to pain in both knees, and has considered this estimate in determining whether a higher rating is warranted based upon where pain begins. Additionally, the Board finds that the June 2020 VA examiner considered pain in weight-bearing as the examiner made findings that additional contributing factors to the Veteran’s bilateral knee disability include less movement than normal, disturbance of locomotion, and interference with standing. The Board notes that the record does not otherwise indicate that pain in weight-bearing status caused any additional loss of motion and finds probative the several VA treatment records reflecting the Veteran had full range of motion, including, more recently, a June 2020 VA treatment record reflecting that he had full range of motion of the lower extremities. Thus, even assuming a degree of lost motion due to pain or during flare-ups/repeated use over time, the Veteran has not been observed to demonstrate lost motion approaching what is contemplated for a higher rating. Moreover, the VA examination reports of record detail the Veteran’s pain level, to include with motion, and his reported functional loss. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s knee disabilities. Thus, the Board finds that the VA examination reports, together with the other evidence, are adequate to decide the Veteran’s increased rating claims and that a remand for additional development would serve only to delay the claims. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Indeed, the Board finds that the assigned separate ratings for right and left knee instability, discussed below, account for any additional weight-bearing symptomatology or functional impact of his disabilities that are not already contemplated by his assigned 10 percent ratings. See DeLuca, 8 Vet. App. 202. Accordingly, as the preponderance of the evidence is against the claim, ratings in excess of 10 percent for the Veteran’s right and left injury residuals with chondromalacia patella are denied. B. Right and Left Knee Instability The Board finds, after resolving all reasonable doubt in the Veteran’s favor, that separate 10 percent ratings, under DC 5257, are warranted for the Veteran’s right and left knee disabilities based on instability. Based on the evidence summarized above, both the Veteran’s left and right knee instability more nearly approximate a “slight” disability. In this regard, the Veteran has consistently reported intermittent instability and weakness and that both his right and left knee occasionally gave way. The VA treatment records also document that the Veteran wore braces for both his left and right knees and that he occasionally reported falling after his knee gave out. Additionally, the November 2015 VA examiner found that the Veteran’s knee symptomatology included swelling and intermittent giving out while the June 2019 VA examiner found that the Veteran’s disability manifested in instability of station and disturbance of locomotion. The June 2020 VA examiner also determined that the Veteran’s disability resulted in disturbance of locomotion and interference with standing. In light of the above, the Board finds the Veteran’s reports of instability to be credible and finds that they are substantiated by the medical evidence of record. The Board notes that although joint stability testing has not explicitly established the presence of knee instability, the Court has held that a claim based on knee instability cannot be denied solely due to the lack of objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). Therefore, the Veteran’s competent and credible subjective statements, coupled with the objective evidence of his use of knee braces for stability, convince the Board that the Veteran’s disability more nearly approximates slight instability. Thus, the Board finds that the assignment of a separate 10 percent rating for slight right knee instability is warranted from March 26, 2009, the date of the Veteran’s increased rating claim as the evidence of record reflects slight instability from this date but does not reflect such in the one-year period prior to the Veteran’s claim. The Board finds that a separate 10 percent rating for slight left knee instability is warranted from July 10, 2008, the date the Board finds that a separate rating based upon instability for the left knee is first factually ascertainable. In this regard, the evidence shows that the Veteran sought treatment on July 10, 2008, after falling from his left knee and that a left knee immobilizer was ordered. As such, and giving the Veteran the benefit of the doubt, the Board assigns a separate 10 percent rating for left knee injury residuals for chondromalacia patella based on instability from July 10, 2008. However, the Board finds that a higher rating for his right and left knee instability is not warranted during any point in the appeal period. In this regard, joint stability tests for the right and left knee have been normal while a history of knee instability/subluxation are not recorded in the VA examinations of record. Given that these tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. Additionally, although a July 2009 VA treatment record reflects slight laxity of the left knee, x-ray evidence during the appeal period did not reveal subluxation or laxity. As such, for the purposes of determining the severity of his right and left knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability. Accordingly, the Veteran is entitled to a separate rating of 10 percent, but no higher, for right knee instability from March 26, 2009, and a separate 10 percent rating, but no higher, for left knee instability from July 10, 2008. C. Extraschedular Consideration The Board acknowledges that in November 2019 correspondence, the Veteran’s representative generally raised the issue of extraschedular consideration and, as such, the Board has considered whether the Veteran’s knee disabilities should be rated on an extraschedular basis. See November 2019 Appellate Brief. Extraschedular ratings are assigned in cases where an exceptional or unusual disability picture is presented that renders application of the regular rating schedular standards impractical, due to factors such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that disability picture are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). If the rating criteria reasonably describes a veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule (i.e., the assigned schedular evaluation is adequate), and no referral is required. However, if the schedular criteria do not contemplate a veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). Id. In the present case, the Board finds that the Veteran’s left and right knee disability picture is not so unusual or exceptional in nature as to render the ratings assigned for the Veteran’s disabilities inadequate. In this regard, the Board finds that when comparing the Veteran’s left and right knee disability picture with the symptoms contemplated by the Rating Schedule, the Veteran’s symptoms are contemplated by the ratings assigned throughout the appeal period. In fact, the Board finds that the criteria for the ratings assigned more than reasonably describe the Veteran’s disability level and symptomatology during the appeal period. Specifically, the lay statements and medical evidence of record show that the Veteran’s knee disabilities have resulted in pain, including painful motion, weakness, giving way, stiffness, lack of endurance, fatiguability, popping, crepitus, clicking, numbness/tingling, disturbance of location, and interference with standing. His bilateral knee disability has also resulted in restricted ability to walk, stand, kneel, squat, and climb stairs. These symptoms, as discussed above, are contemplated in his assigned 10 percent ratings, as well as separate 10 percent ratings for instability. Indeed, his symptoms of giving way, weakness, lack of endurance, and resultant mobility issues were the bases for his separate instability ratings. Additionally, the effects of pain, documented in the medical records, have been considered and contemplated in his 10 percent ratings under DCs 5099-5014 while his symptomatology of swelling, crepitus, and popping are also accommodated by the already assigned ratings. As such, the Board finds that the Veteran’s currently assigned ratings adequately account for his functional impairments and symptomatology documented in the medical records and VA examinations including after consideration of the DeLuca factors. The Board also finds there is no additional impairment that is not attributable to his assigned ratings. Accordingly, this is not an exceptional circumstance in which referral for extraschedular consideration is required during any portion of the appeal period, to include when considering the combined effects of his right and left knee disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 2. Entitlement to a TDIU due to service-connected disabilities By way of background, a claim for entitlement to a TDIU was raised by the record as part of the Veteran’s increased rating claims for his service-connected left and right knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider whether a TDIU is warranted from March 26, 2009, the date of the Veteran’s increased rating claim, as well as from the one-year period prior to this date. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following “substantially gainful employment” consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period, the Veteran is in receipt of 10 percent ratings for his service connected right and left knee injury residuals with chondromalacia patella (10 percent each) and now separate 10 percent ratings for his right and left knee disabilities, respectively, based upon instability. As such, with consideration of the Board’s grant of separate right and left knee ratings and the bilateral factor, the combined rating of the Veteran’s disabilities does not meet the schedular criteria for TDIU. Therefore, TDIU on a schedular basis, is not warranted at any point during the appeal period. Nonetheless, even if the Veteran fails to meet the schedular requirements, if the evidence raises a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities, an extraschedular rating is for consideration. If this is the case, the Board may refer the matter to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. Here, after review of the evidence, the Board finds that referral for extraschedular TDIU consideration is not warranted. In this regard, the Veteran reported that he completed high school and received training on heavy equipment. See January 2015 VA Form 21-8940. After his discharge service, the evidence reflects that he worked in factories, did maintenance on rental properties, worked in the bar/restaurant business, including as a manger, and worked in construction. See April 2012 and November 2015 VA examinations; January 2015 VA Form 21-8940. Specifically, the evidence reflects that he worked in construction with mechanical insulation of buildings and scaffolding until 2006 when he was laid off because the section that he was working in was eliminated. See November 2015 VA examination. Thereafter, he worked for another company in construction. Id. In his TDIU application, he reported that he last worked full time in August 2008 in construction. See January 2015 VA Form 21-8940. He reported that he had tried to obtain employment since, but that he last worked in August 2008. See id. He also testified that he cannot work due to his knee condition and explained that he no longer works in mechanical insulation, in part, because he cannot climb the ladders or scaffolds. See December 2012 Board hearing transcript, pp. 12-15. Despite these claims and attempts for the Veteran to clarify his employment history, the Board finds that the evidence of record remains unclear as to whether the Veteran last worked in August 2008 and whether he stopped working solely due to his service-connected disabilities. In this regard, the April 2012 VA PTSD examination reflects that the Veteran worked in construction until 2008 when he was laid off. Further, the VA examination reflects that he since had been working as a tattoo artist and that his psychosocial and environmental problems included marginal employment and financial strain. Similarly, an April 2009 VA treatment record reflects that the Veteran had been laid off from work the year prior and had not been doing much while an April 2010 VA treatment record reflects that the Veteran was starting a tattoo business. Moreover, a May 2009 statement in the Veteran’s record from an individual who runs a carpet installation business noted that due to the Veteran’s knee limitations, he could not “do the job on a consistent basis.” See May 2009 Statement in Support of the Claim. Based on this evidence, the Board finds it unclear if the Veteran was working, in some capacity, with a carpet installation business for any point during the appeal period. Moreover, a July 2012 VA treatment record reflects that the Veteran does try to work, and an August 2014 VA treatment record reflects that the Veteran worked by doing tattoos. On the other hand, an August 2013 VA treatment record reflects that the Veteran was not currently working. Given the internally inconsistent reports from the Veteran concerning his employment history, and lack of clarification from the Veteran, the Board assigns less probative weight to his statements that he stopped working in 2008 solely due to his service-connected knee disabilities. Additionally, if the Veteran had been gainfully employed during this appeal period, without the lack of indication that he was working in a protected environment or that such employment was more than marginal, then the evidence would indicate that his service-connected disabilities did not render him unable to secure or maintain employment. Regardless, the Board finds that the evidence does not show the Veteran was precluded from substantially gainful employment consistent with his education and work history as due to his service-connected disabilities. First, the Board does not dispute that the Veteran’s right and left knee disabilities affect his occupational abilities, including difficulty/pain with climbing stairs and with prolonged walking and standing. Indeed, a January 2012 VA treatment record reflects that the Veteran identified his knee and back pain as limiting his job options while the June 2020 VA examiner found that the Veteran’s disability impacted his ability to work as he reported difficulty with climbing stairs and walking long distances and was unable to squat. However, the evidence does not show that his service-connected disabilities result in an inability to maintain and secure substantially gainful employment nor does the evidence indicate that the Veteran is limited from participating in less active forms of work. For instance, the July 2009 VA examiner noted that although the Veteran reported his continuous knee pain results in an inability to do anything, his knee examination was essentially normal. Critically, the November 2015 VA knee examiner found that although the Veteran reported experiencing pain with prolonged standing and walking, and was unable to play golf, his current knee condition would not preclude him from full time work, including the work that he used to perform. The Board finds this probative evidence against the Veteran’s claim because the VA examiner considered the Veteran’s symptoms throughout the course of the appeal, considered his prior employment history, provided rationale regarding the functional impact of the Veteran’s disability, and had the benefit of personally examining the Veteran. Additionally, although the evidence demonstrates that the Veteran's right and left knee symptoms may prevent him from performing occupational duties that involve strenuous physical labor or excessive climbing and walking, the evidence does not reflect that he would not be able to perform occupational duties in an unskilled or semi-skilled position that does not involve strenuous physical labor or excessive climbing and walking. To this point, the Board notes the evidence of record indicating the Veteran worked as a tattoo artist and the evidence indicating prior employment history involving some supervisory experience. Accordingly, the Board finds that for the appeal period, the probative evidence does not show that the Veteran’s service-connected disabilities alone would preclude him from engaging in substantially gainful employment otherwise consistent with his educational or work history. As a result, the Board finds that referral for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b) is not warranted. Therefore, the Veteran’s claim for a TDIU is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.