Citation Nr: 21003766 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 11-23 849A DATE: January 22, 2021 ORDER 1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD) from February 14, 2012, to include on an extraschedular basis, is denied. 2. Entitlement to a separate compensable rating for right knee instability from July 1, 2013, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. From February 14, 2012, the Veteran’s low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of disc disease; additional (not already acknowledged and separately rated) neurological manifestations are not shown or alleged. 2. From July 1, 2013, the preponderance of the evidence is against a finding that the Veteran’s post-total knee replacement (TKR) right knee disability was manifested by recurrent subluxation or instability. CONCLUSIONS OF LAW 1. A rating in excess of 40 percent for lumbar DDD from February 14, 2012, is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5235-5243. 2. From July 1, 2013, a separate compensable rating for post-TKR right knee instability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1969 to June 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision that continued 20 percent ratings, each, for the Veteran’s lumbar spine and right knee degenerative joint disease (DJD) (based on instability and limitation of flexion). A September 2011 rating decision assigned a separate 10 percent rating (from March 17, 2006) for painful limitation of motion with arthritis. A June 2012 rating decision increased the rating for the Veteran’s lumbar spine disability to 40 percent, effective February 14, 2012, and awarded a separate 20 percent rating for right lower extremity radiculopathy. [As discussed in prior Board decisions, he did not appeal that determination, and that decision is now final; the matter of the rating for right lower extremity radiculopathy is not before the Board.] In May 2013, a Board videoconference hearing was held; a transcript is associated with the record. [October 2020 Board correspondence advised the Veteran that the Veterans Law Judge (VLJ) who conducted the May 2013 hearing is no longer with the Board, and offered him the opportunity for another Board hearing. He did not reply; per the letter, the Board assumes he does not want another hearing.] A September 2013 rating decision assigned a schedular 100 percent rating following right total knee replacement (TKR) surgery from May 2, 2012 to July 1, 2013, and a 30 percent rating from that date. A November 2014 Board decision denied a rating in excess of 20 percent for the low back disability prior to February 14, 2012, and denied a rating in excess of 20 percent for the right knee disability prior to May 2, 2012. The Board remanded the matters of the ratings from those respective dates for additional development. An April 2015 rating decision increased the post-TKR right knee rating from 30 to 60 percent, effective October 25, 2014. A June 2017 Board decision denied a rating in excess of 40 percent for lumbar spine DDD and increased the post-TKR right knee rating from 30 to 60 percent from (the earlier date of) July 1, 2013. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a January 2018 Joint Motion for Partial Remand (JMPR) by the parties. [The parties agreed not to disturb the 60 percent rating assigned for right post-TKR residuals. They agreed that remand was warranted because the Board erred by not considering whether the Veteran might be entitled to a separate compensable rating under Code 5257 for right knee subluxation or instability. The parties also agreed that the claim seeking a rating in excess of 40 percent for lumbar spine DDD from February 14, 2012, should be remanded for appropriate active and passive range of motion (ROM) testing mandated by Correia v. McDonald, 28 Vet. App. 158 (2016). The parties also agreed that the Board “articulated the incorrect legal standard in discussing whether entitlement to referral for extraschedular referral was warranted by focusing only on evidence of a collective impact rather than the individual disability picture.”] A January 2018 CAVC Order remanded the matter for compliance with the JMPR instructions. In June 2018 and May 2019, the case was remanded for additional development. [On September 21, 2020, the Board sent the Veteran a letter advising him that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, it was found that he did not have a pending hearing request. As noted above, a hearing before a VLJ was held in May 2013 (and the transcript is being considered by the undersigned as evidence in this appeal). He did not elect to accept the offer for another hearing, when the offer was made.] Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 1. Entitlement to a rating in excess of 40 percent for lumbar spine DDD from February 14, 2012, to include on an extraschedular basis, is denied. Legal Criteria The criteria for rating spine disabilities are found in Codes 5235 – 5243. A spine disability which includes disc pathology may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or based on Incapacitating Episodes of Disc Disease (IVDS), whichever is more favorable. Under the General Formula, the following ratings apply to disabilities of the thoracolumbar spine: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. And a 100 percent rating is assigned ed for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. See Note (1) following the General Formula. 38 C.F.R. § 4.71A. Under the Formula for Rating IVDS Based on Incapacitating Episodes, the following ratings apply: A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. An “incapacitating episode” is defined as “a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, and Note (1) following. Factual Background Based on the procedural history outlined above, the period for consideration is from February 14, 2012. On February 2012 VA (fee basis) back examination, lumbar spine DDD and IVDS were diagnosed. The Veteran endorsed flare-ups manifested by pain, stiffness, poor weight-bearing, and difficulty with job functions. Initial ROM testing showed forward flexion to 30 degrees (with objective evidence of painful motion at 15 degrees), extension to 0 degrees (with objective evidence of painful motion at 0 degrees), right and left lateral flexion to 5 degrees, each (with objective evidence of painful motion at 5 degrees, each), and right and left lateral rotation to 10 degrees, each (with objective evidence of painful motion at 10 degrees, each). Repetitive use testing did not result in additional limitation of ROM. Strength, reflex, and sensory examinations were normal except for left foot/toe sensation, which was decreased. There were no neurologic abnormalities such as bowel or bladder problems. The examiner diagnosed IVDS, and noted there were no incapacitating episodes in the prior 12 months. The Veteran regularly used a cane. The examiner opined that functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner noted the functional impact of the back disability is “significantly decreased weight bearing and lifting ability… and difficulty with sedentary activity given pain and stiffness with prolonged periods in one position.” An August 2012 VA pain consult record notes the Veteran’s report of constant low back pain, rated 7-8/10, worse with movement and better with rest and medication. ROM testing showed forward flexion to 40 degrees, extension to 5 degrees, right and left lateral bending to 10 degrees, each, and right and left lateral rotation to 30 degrees, each. The assessment was chronic lower back pain and chronic opiate therapy; the plan was to taper the strength of his fentanyl patch. A January 2013 private pain management record notes complaints of chronic back pain that is stable on the current medication regimen. On examination, the nurse practitioner noted “discomfort on range of motion of the lumbar spine. There is tenderness and spasm on palpation of lumbar paraspinous muscles.” Private pain management records through June 2013 note similar complaints. At the May 2013 Board hearing, the Veteran reported treatment with Vicodin (prescribed by a private pain management doctor). He and his wife reported loss of intimacy and inability to pick up his grandchildren. His wife testified that he can walk around the house “for a little while” and let the dog outside, but no longer does housework or yard work. The Veteran testified that he uses a cane for his back, right knee, and right lower extremity radiculopathy. In a June 2013 statement, the Veteran’s spouse related that he used to be an active person but now he spends most days watching TV or sleeping on the couch. [Much of the statement focused on mental health symptoms.] On March 2015 VA back examination, the diagnosis was degenerative arthritis of the spine. The Veteran reported chronic low back pain; he reported that a morphine pump helps reduce the pain. He denied flare-ups and functional loss/impairment (regardless of repetitive use). Initial ROM testing showed forward flexion to 70 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, each, and right and left lateral rotation to 30 degrees, each. Pain was noted on examination (specifically forward flexion), but it did not result in/cause functional loss. There was no evidence of pain with weight-bearing. Repetitive use testing did not result in additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There was no guarding or muscle spasm of the thoracolumbar spine. Strength, reflex, and sensory examinations were normal. The spine was not ankylosed. There were no neurologic abnormalities such as bowel or bladder problems. IVDS was not diagnosed. The Veteran did not use assistive devices as a normal mode of locomotion. The examiner opined that functioning is not so diminished that amputation with prosthesis would equally serve the Veteran, and also opined that low back disability does not impact on the Veteran’s ability to work. VA treatment records during the appeal period periodically note complaints of low back pain, stable with medication including morphine pump and gabapentin. See August 2017 and August 2018 treatment records. Specific ROMs were not reported. On February 2019 VA (fee basis) back examination, degenerative arthritis of the spine and DDD with radiculopathy in the right lower extremity were diagnosed. The Veteran reported ongoing pain since 1972 and continued use of a pain pump. He endorsed having flare-ups, describing his back as “Worse with activity and with cold weather.” He reported functional loss/impairment (regardless of repetitive use) as “cannot bend and lift.” Initial ROM testing showed forward flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, each, and right and left lateral rotation to 30 degrees, each. Pain was noted on examination to cause functional loss; it was specifically noted on forward flexion, and the examiner noted the Veteran has “Very limited ability to perform tasks requiring flexion.” [Pain was noted on non-weight bearing. Passive ROM was noted to be the same as active ROM.] Pain was noted on palpation, and with weight-bearing. Following repetitive use testing, there was no additional loss of function or ROM. Although the examination was not conducted after repeated use over time or during a flare-up, the examiner (an orthopedic surgeon) opined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over a period of time and during flare-ups. He estimated that after repetitive use over time and during flare-ups, pain would limit lumbar spine ROM as follows: forward flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, each, and right and left lateral rotation to 30 degrees, each. Guarding was noted to result in abnormal gait or abnormal spine contour. The examiner noted that less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing were contributing factors of disability; he specifically noted that walking is limited due to pain, resulting in “poor endurance.” The spine was not ankylosed. Strength tests were all 4/5 or 5/5; there was no muscle atrophy. Reflex tests were normal (2+) at the knees and hypoactive (1+) at the ankles. Sensory tests were normal except for the right lower leg/ankle and foot/toes, which were decreased. There were no other neurologic abnormalities. IVDS was not diagnosed. The Veteran reported regular use of a walker, and occasional use of a cane or crutches; the assistive devices were noted to “help with the TKR and back. Can go about 100 feet.” The examiner opined that functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner opined that the Veteran’s low back disability limits him to sedentary work with breaks for standing and stretching as needed. In May 2019, the Board remanded the matter for consideration of whether referral to the Director of the Compensation Service for consideration of an extraschedular rating was warranted. In a July 2020 Supplemental Statement of the Case (SSOC), the AOJ found that the case does not present such an unusual disability picture to warrant referral to the Director of Compensation and Pension Service because the evidence does not show a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Analysis From February 14, 2012, the Veteran’s low back disability has been rated 40 percent. The next higher (50 percent) rating under the General Formula requires unfavorable ankylosis of the entire thoracolumbar spine. All evaluations and examinations during this period found that the Veteran retains motion of the thoracolumbar spine (even with consideration of additional limitation due to pain, on repeated use, and during flare-ups (as detailed above)). No examiner found the spine to be ankylosed, much less ankylosed in an unfavorable position. See February 2012, March 2015, and February 2019 VA back examination reports. Beyond the already separately rated right lower extremity neuropathy, no other neurologic manifestations have been shown. As IVDS was diagnosed on the February 2012 VA examination, the Board has also considered whether a higher schedular rating would be warranted if the low back disability was rated under the Formula for Rating IVDS based on incapacitating episodes. Under that Formula, the next higher (60 percent) rating for IVDS requires at least 6 weeks of total incapacitating episodes in the last 12 months. A review of the evidence found that no physician-prescribed bed rest is shown, or was alleged. The Board has considered whether this matter warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The determination involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the disability level and symptomatology. If so, the analysis stops at that point; referral for extraschedular consideration is not required. If the schedular rating criteria do not reasonably describe a Veteran’s level of disability and symptomatology, a further determination must be made as to whether there is an exceptional disability picture that includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. The Board finds that the first prong of the Thun analysis is not satisfied. The Veteran’s low back disability is manifested by reports of pain, stiffness, reduced ROM, and occasional flare-ups (as outlined above). Such manifestations and related impairment are fully contemplated by the regular schedular criteria. Those criteria provide for higher ratings, but the criteria for such ratings are not met. Furthermore, there is nothing exceptional or unusual about the Veteran’s low back disability. See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020). Accordingly, referral for extraschedular consideration is not warranted. Based on the foregoing, a rating in excess of 40 percent for the Veteran’s low back disability, is not warranted. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). [Notably, a total disability rating based on individual unemployability (TDIU) has been in effect since October 2011.] 2. Entitlement to a separate compensable rating for right knee instability from July 1, 2013 is denied. Legal Criteria Post-TKR knee disability is rated under Code 5055. A 100 percent rating is to be assigned for 1 year following implantation of a prosthesis. Following expiration of the 1-year period, a 30 percent rating is the minimum rating to be assigned. A 60 percent [maximum schedular] rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Codes 5256 (for ankylosis), 5261 (for limitation of extension), or 5262 (for impairment of the tibia and fibula). 38 C.F.R. § 4.71a. A total (schedular for post-TKR) rating was assigned for the Veteran’s right knee disability from May 2, 2012 to July 1, 2013. The post-TKR right knee disability has been assigned a 60 percent rating from July 1, 2013. Under Code 5257, other knee impairment manifested by recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent (the maximum) when severe. Ratings for extremities are also governed by 38 C.F.R. § 4.68 (the amputation rule), which provides that the combined rating for disabilities of an extremity shall not exceed the rating for amputation of the extremity at the elective level, were amputation to be performed. Under Code 5162, amputation of a leg at the middle or lower third of the thigh is rated 60 percent. The next higher (80 percent) rating (under Code 5161) requires that the elective site of amputation be at the upper third of the thigh, one-third of the distance from perineum to the knee joint measured from the perineum. 38 C.F.R. § 4.71a. [The Board notes that the “amputation rule” states that “the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were the amputation to be performed.” 38 C.F.R. § 4.68. The rating for an amputation at the middle or lower third of the thigh or below would be 60 percent. 38 C.F.R. § 4.71a, Code 5164. The Board does not rely on 38 C.F.R. § 4.68 in denying this claim (and has adjudicated the appeal on the merits based on the parties’ January 2018 JMPR). However, any award of a separate (from the 60 percent maximum schedular under Code 5055 rating) compensable rating for the post-TKR right knee disability would require consideration of the “amputation rule.”] Factual Background As noted above, the Veteran underwent right TKR surgery in May 2012; a 60 percent rating under Code 5055 has been assigned from July 1, 2013. In the January 2018 JMPR, the parties agreed that remand was warranted because the Board erred by not considering whether the Veteran might be entitled to a higher rating under Code 5257 for recurrent subluxation or instability. The parties agreed that “Remand is warranted for the Board to consider the evidence regarding knee instability and subluxation and then determine whether a separate compensable rating under [Code] 5257 is warranted.” May 16, 2012 right knee x-rays (conducted two weeks after the TKR surgery) showed no evidence of hardware loosening or fracture. There was “stable alignment of the total right knee arthroplasty.” A May 2013 VA orthopedic surgery record (1-year follow-up) notes the Veteran’s report that he has been doing well, including walking in the yard with the use of a cane. “He still has some stiffness but is active.” X-rays showed “right knee-components well seated no evidence of loosening.” There was no instability with varus/valgus stress. At the May 2013 Board hearing, the Veteran reported that since his TKR surgery, his knee has been stiff and he “can’t bend it very far.” His spouse testified that he has daily knee pain when he walks, which requires him to lay down on the couch or in bed. She reported that she helps treat his knee pain by elevating his knees on pillows and applying heating pads. While the Veteran testified that prior to the TKR surgery (prior to the period for consideration) his right knee felt loose and that he occasionally fell, he did not testify to feelings of looseness or instability after the surgery. An April 2014 VA orthopedic surgery record (2-year follow-up) notes an assessment of right total knee arthroplasty “with improving ROM.” There was no instability with varus/valgus stress. On October 2014 VA (fee basis) knee examination, the Veteran reported that since his 2012 TKR, he has had “significant knee pain and decreased range of motion leading him to ambulate with a single point cane.” The examiner (a general practitioner) checked the appropriate boxes to indicate that the Veteran has functional loss and/or impairment of the right knee and lower leg due to less movement than normal, weakened movement, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner further reported that all stability tests (anterior, posterior, and medial-lateral) were normal, and that there was no recurrent patellar subluxation/dislocation. He checked the appropriate boxes to indicate that the Veteran has post-TKR chronic residuals consisting of severe painful motion or weakness, but no other residuals/symptoms. He explained that the Veteran “uses a single point cane due to right knee pain, weakness, and decreased range of motion.” On March 2015 VA knee examination, the medical history section states, “No pain. Does have limited ROM. Medication morphine. No swelling, instability, or locking.” He denied flare-ups. Joint stability tests (anterior, posterior, medial, and lateral) were all normal. The examiner checked the appropriate boxes to indicate there is no history of recurrent subluxation, lateral instability, and recurrent effusion. The examiner opined there were no residuals of the 2012 TKR surgery. A November 2015 VA treatment record notes that back pain and right knee pain limit the Veteran’s activities; right knee instability is not noted. On February 2019 VA (fee basis) knee examination, the Veteran reported that his right knee remains “hard to bend,” that he cannot fully straighten the knee, and that he must use his hands “to propel to get up out of chairs.” He endorsed having flare-ups in cold and wet weather, manifested by additional pain and difficulty rising from a sitting position. The examiner (an orthopedic surgeon) checked the appropriate boxes to indicate that the following are additional contributing factors of disability: less movement than normal; disturbance of locomotion, interference with sitting, interference with standing, and “more pain with any weight on [the] right knee.” The examiner noted there was no history of recurrent subluxation or lateral instability; he did note a history of swelling. Joint stability tests (anterior, posterior, and medial-lateral) were all normal. There was no recurrent patellar dislocation. He checked the appropriate boxes to indicate that the post-TKR right knee disability is manifested by intermediate degrees of residual weakness, pain, or limitation of motion, but no other residuals/symptoms beyond those previously outlined. The Veteran reported regular use of a walker, and occasional use of a cane or crutches, that were noted to “help with the TKR and back. Can go about 100 feet.” At the end of the report, the examiner reiterated, “There is no evidence of instability on exam.” Analysis Upon review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s post-TKR right knee disability (rated 60 percent from July 1, 2013) warrants a separate compensable rating for instability. First, the post-TKR right knee disability is assigned a 60 percent rating under Code 5055 for severe painful motion or weakness in the affected extremity. The rating criteria under Code 5055 do not allow for a separate rating under Code 5257; notably, it explicitly provides for intermediate degrees of weakness, pain, or limitation of motion under Codes 5256, 5261, and 5262 (but not Code 5257). The Board finds that a separate compensable rating under Code 5257 would be prohibited under 38 C.F.R. § 4.14 because the severe weakness underlying the 60 percent rating currently assigned would also be contemplated by Code 5257; the prohibition against pyramiding does not allow the same manifestation – instability – to be compensated twice. Second, the Veteran’s right knee joint is now a prosthetic (metal) joint. A prosthetic joint would presumably not be unstable or allow for subluxation unless it is damaged or loosened, which is not shown or alleged. May 2013 X-rays showed the right knee components were “well seated” with “no evidence of loosening.” Subsequent treatment records do not discuss damage to, or loosening of, the prosthetic. Third, the preponderance of the evidence is against a finding that the Veteran’s post-TKR right knee disability has been manifested by recurrent subluxation or lateral instability. The Board acknowledges that the October 2014 examiner checked the box that states, “instability of station.” However, in that same report, the examiner explicitly reported that all stability tests (anterior, posterior, and medial-lateral) were normal, that there was no recurrent patellar subluxation or dislocation, and that there were no other post-TKR residuals/symptoms beyond chronic residuals consisting of severe painful motion or weakness. Furthermore, the clinical record shows that throughout, the post-TKR right knee disability has been stable and without subluxation, including on two additional VA examinations, in March 2015 and February 2019. Clinical treatment records in May 2013 and April 2014 also do not evidence instability, including on x-ray and on varus/valgus stress testing. Although the Veteran was using a single point cane to assist ambulation, the October 2014 and February 2019 VA examiners specifically noted that use of the cane is due to right knee pain, weakness, and decreased ROM (not instability). And the February 2019 examiner (an orthopedic surgeon) specifically staed that there is no evidence of instability on examination. The Board acknowledges the CAVC’s recent holdings in English v. Wilkie, 30 Vet. App. 347 (2018), and Tedesco v. Wilkie, 31 Vet. App. 360 (2019), to the extent that the Board must consider any lay reports of instability. However, at the May 2013 Board hearing, the Veteran and his spouse testified that prior to the 2012 surgery, he experienced knee instability and falls. Since the surgery, they reported stiffness, pain, and decreased ROM, but not sensation of looseness or instability. And on March 2015 examination, the Veteran denied instability. The Board has considered whether this matter warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Board has considered the guiding principles established by the CAVC in Long v. Wilkie, supra, when considering the first prong of Thun, and finds that the first prong is not satisfied. The Veteran’s post-TKR right knee disability is manifested by reports of pain, stiffness, reduced ROM, and occasional flare-ups. Such manifestations and related impairment are fully contemplated by the regular schedular criteria, including the 60 percent rating currently assigned for chronic residuals consisting of severe painful motion or weakness. The criteria provide for alternate ratings, but the criteria for higher such ratings are not met. Furthermore, there is nothing exceptional or unusual about the Veteran’s post-TKR right knee disability; the rating schedule, as a whole, is capable of addressing the post-TKR symptomatology. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). [The Board notes that even if the Veteran were able to show that his post-TKR right knee disability satisfies the first prong of Thun, he has not shown that the second prong of Thun (factors such as marked interference with employment and frequent periods of hospitalization) is met. Long v. Wilkie, supra.] Accordingly, referral for extraschedular consideration is not warranted. The preponderance of the competent (medical) evidence is against a finding that a separate rating under Code 5257 for instability is warranted. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, supra. [As was previously noted, a TDIU rating has been in effect since October 2011.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.