Citation Nr: 21013232 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-35 448A DATE: March 9, 2021 ORDER Entitlement to service connection for sleep apnea secondary to sinusitis is denied. Entitlement to an initial rating in excess of 10 percent prior to September 23, 2020, and in excess of 30 percent thereafter for sinusitis is denied. Entitlement to an initial rating in excess 10 percent for right knee patellofemoral pain syndrome is denied. Entitlement to an initial rating in excess of 10 for left knee patellofemoral pain syndrome is denied. Entitlement to an initial rating in excess of 10 percent for right knee lateral instability associated with patellofemoral pain syndrome is denied. Entitlement to an initial rating in excess of 10 percent for left knee lateral instability associated with patellofemoral pain syndrome is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s sleep apnea is not secondary to service-connected sinusitis, and is not otherwise related to an in-service injury or disease. 2. Prior to September 23, 2020, the Veteran’s sinusitis did not manifest in three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 3. As of September 23, 2020, sinusitis did not manifest radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 4. The right and left knee disabilities are manifested by painful noncompensable limitation of extension. 5. The right and left knee disabilities are manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea due to service or service-connected sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial 10 percent rating prior to September 23, 2020, in in excess of 30 percent thereafter for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.31, 4.97, Diagnostic Codes 6513-6511. 3. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 4. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 5. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome based on instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome based on instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1976, and from November 1976 to November 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran appeared at a Board hearing and testified before the undersigned Veterans Law Judge. In August 2019, the Board remanded the issues on appeal. While on remand, the RO granted service connection for erectile dysfunction. Thus, this issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for sleep apnea secondary to sinusitis The Veteran contends that his sleep apnea onset during active service or alternatively was caused or aggravated by service-connected sinusitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A review of the Veteran’s service treatment records shows no diagnosis or reports of sleep apnea. A May 2016 private treatment record noted that the Veteran was diagnosed recently with sleep apnea. The examiner opined that it was less likely than not that sleep apnea was related to his chronic sinusitis. The examiner reported that there was no medical evidence listed in DynaMed or other medical journals that indicated chronic sinusitis caused sleep apnea especially after surgical correction. Additionally, the examiner remarked that the indication for sleep apnea was daytime sleepiness not snoring as reported by the Veteran. A June 2017 VA examination report shows that the Veteran was diagnosed with sleep apnea in May 2016. A September 2018 letter from the Veteran’s private physician Dr. J.R. reported that the Veteran’s chronic rhinosinusitis could cause sleep disturbances as the condition was noted to cause postnasal drainage. The postnasal drainage was irritating to pharyngeal tissues and could be thought to be the cause of the sleep disturbances and the physician would expect it may the cause of some apneic episodes during sleep, thought likely rare. Therefore, the examiner opined that it was at least as likely as not that the chronic rhinosinusitis was the cause of the chronic sleep impairment. A September 2020 VA examination report concerning the etiology of the Veteran’s sleep apnea shows that after a review of the claims file the examiner opined that it was less likely than not that sleep apnea was caused by active service. The examiner noted that the Veteran reported that his significant other reported to him that he snored loudly during the night beginning in 1993. The Veteran reported that he would wake up feeling tired in the morning because he was not resting well at night. The examiner noted that he was diagnosed with severe obstructive sleep apnea in 2016. The examiner noted that the Veteran’s medical treatment records in 1987 notes the following statement, “can't sleep at night for coughing” and he was diagnosed with an upper respiratory infection, the coughing/sleep disturbance was present during an acute infection and not reported as a chronic issues. The examiner noted that 1989 service treatment records indicated that the Veteran’s tonsils were enlarged +3 in the presence of URI. The examiner noted that enlarged tonsils could cause the upper respiratory airway to be obstructed during sleep, however this was in the presence of an acute infections and was not noted to be a chronic issue during service. The examiner noted that the Veteran's separation exam in 1993 was silent for a sleeping disorder. The examiner took into consideration the Veteran's statement that he had sleep apnea during service and that he did not know a name for his sleeping disorder. The examiner noted Veteran made a statement to the Board in 2018 that he did not have an issue with sleep apnea during service; however, the day of exam he stated that he had sleep apnea during service but did not seek medical care. He did state that he believed that sleep apnea was caused from sinusitis during service. The examiner noted that the evidence in the service records do not indicate that sleep apnea incurred during service, the separation exam in 1993 does not indicate on the health questionnaire an issue with a sleeping disorder during service. The service treatment records were noted not to show treatment related for a sleep disorder or sleep apnea during service. Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused or aggravated by service connected disabilities to include sinusitis. The examiner noted that the Veteran reported that a private physician told him that his sleep apnea could be secondary to sinusitis. The examiner was unable to find scientific evidence to support that ethmoid and maxillary sinus would be secondary to sleep apnea. According to a medical study and literature was inconsistent in regard to the prevalence of sleep-related disorder breathing (OSA) in chronic rhinosinusitis patients. Although nasal obstruction is linked to sleep disturbance, the extent of sleep disturbance in chronic rhinosinusitis seems to expand beyond that expected from physical blockage of the upper airway alone. The evidenced reviewed supports that chronic rhinosinusitis could result in a sleep disturbance, but there was not a clear correlation between obstructive sleep apnea and rhinosinusitis. Dr. JR stated in 2017 the rhinosinusitis could cause sleep disturbance and could cause some apneic episodes during sleep, though likely rare. Evidence indicate that chronic rhinosinusitis can cause sleep disturbance, it is likely that a person would not be able to rest well at night if they could not inhale or exhale air related to an obstructed nostril. The examiner was unable to find research data to supportive the speculative statement that chronic rhinosinusitis could cause some apneic episodes during sleep or that chronic ethmoid and maxillary sinuses would result in sleep apnea. The examiner reported that the Veteran's medical record revealed diagnoses that are risk factors for obstructive sleep apnea such as obesity and smoking. The examiner opined that it was less likely than not that sleep disorder to include sleep apnea was caused by the service-connected diagnosis maxillary and ethmoid sinusitis. Regarding aggravation, the examiner remarked it was less likely than not that sleep apnea was aggravated by service-connected sinusitis. The examiner noted that the Veteran had other risk factors that more likely aggravated his sleep apnea such as obesity, smoking, and alcohol use. In the presence of other risk factors, which could not be excluded, it could not be determined that sinusitis aggravated his sleep apnea. After a review of the evidence of record the Board finds that service connection on a direct basis is not warranted. The Veteran has been diagnosed with obstructive sleep apnea; thus, there is a current disability. Although there is a current disability, the more probative evidence of record does not establish that diagnosed sleep apnea had onset in service or is otherwise related to the Veteran's periods of service. The preponderance of the evidence does not establish that obstructive sleep apnea had onset during the Veteran's period of service as the service treatment records are silent for a diagnosis of sleep apnea, or any sleep related complaints or treatment. Thus, the objective medical evidence from the Veteran's period of service does not show in-service onset of sleep apnea. Additionally, the Board notes that the Veteran’s sleep apnea was first diagnosed many years after service in 2016. This gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The Board notes that the September 2018 and September 2020 VA examination reports and associated medical opinions demonstrate that sleep apnea was not related to active service. The examiners considered the lay and medical evidence and concluded there was no in-service event that could have led to the development of the Veteran's sleep apnea. Although the Veteran may have experienced some sleeping difficulty and coughing during service, the examiners reported that this was not due to sleep apnea but more likely due to his sinus condition. Additionally, the examiner opined that the Veteran had other risk factors such as obesity and a 20-year smoking history. The examiner's opinion is probative because the examiner considered the relevant lay and medical evidence and offered a rationale. The 2018 and 2020 opinions weigh heavily against the claim. Regarding secondary service connection for sleep apnea due to sinusitis, the Board finds that service connection on a secondary basis is not warranted as the more probative medical evidence fails to establish an etiological link between the service-connected sinusitis and sleep apnea. The September 2020 VA examiner opined that diagnosed sleep apnea was not caused or aggravated by service-connected sinusitis. The examiner cited to medical literature and explained that sleep apnea was not caused by sinusitis. Regarding aggravation the examiner noted that more likely that cause of aggravation of sleep apnea was caused by obesity, smoking, and alcohol use. In the presence of other risk factors, which could not be excluded, the examiner remarked that it could not be determined that sinusitis aggravated his sleep apnea. The Board finds that the 2020 opinion weighs heavily against the claim. The Board does acknowledge the September 2018 letter from the Veteran’s private physician which noted the opinion that it was at least as likely as not that the rhinosinusitis could cause sleep disturbances as the condition was noted to cause postnasal drainage. The Board finds that the private physician’s etiological opinion is speculative in nature, as the opinion used the word “could” and only references that postnasal drip would cause sleep disturbances not apnea. Nevertheless, the Board finds that the September 2020 opinion outweighs the private opinion, as the examiner cited to medical literature and provided a more expansive explanation to support the conclusion provided. To the extent the Veteran asserts that sleep apnea had onset in service or secondary to service-connected sinusitis, as a lay person he does not have the medical expertise to diagnose sleep apnea or determine its onset. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Although competent to report sleep symptoms, the Veteran is not competent to attribute sleep symptoms to one diagnosis or another, as such requires knowledge of medical and psychiatric interactions. Additionally, the September 2020 examiner considered the Veteran’s lay statements of sleeping difficulty during active service. Overall, the lay evidence does not establish that sleep apnea had onset during the Veteran's period of service, is otherwise caused by service, or was caused or aggravated by service connected sinusitis. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The 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 (2017). 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 2. Entitlement to an initial rating in excess of 10 percent prior to September 23, 2020, and in excess of 30 percent thereafter for sinusitis The Veteran seeks an evaluation in excess of 10 percent for his sinusitis prior to September 23, 2020, and in excess of 30 percent thereafter. Sinusitis is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514, which pertain to various types of sinusitis, each of which is rated pursuant to a general rating formula for sinusitis. Diagnostic Code 6510 pertains to chronic pansinusitis sinusitis; 6511 pertains to chronic ethmoid sinusitis; 6512 pertains to chronic frontal sinusitis; 6513 pertains to chronic maxillary sinusitis; and 6514 pertains to chronic sphenoid sinusitis. Under the general rating formula for sinusitis, a 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. An April 2009 VA examination report shows that the Veteran had sinusitis since 1999. During episodes, the Veteran did not report incapacitation but did experience constant non-incapacitating episodes per year. Antibiotics treatment lasting 4-6 weeks was needed. Interference with breathing through nose was reported. Purulent discharge, pain, and sneezing were reported. Functional impairment caused by the sinusitis was not reported. Examination of the nose revealed nasal obstruction of 50 percent for the right and left nostrils. Nasal turbinates erythema and swelling were assessed. An August 2015 VA examination report shows chronic sinusitis. The Veteran reported using Allegra daily for sinuses. He reported flushing his sinuses a few times a week. Postnasal drainage was reported daily. He did not report using antibiotics the past year for the condition. The Veteran reported infrequent maxillary sinus pain and pressure a few times per month lasting one to two hours. The examiner noted sinusitis and rhinitis were present. Regarding sinusitis the examiner reported that the condition was the maxillary and ethmoid types. Symptoms were noted as chronic sinusitis detected only by imaging studies, episodes of sinusitis, pain, tenderness of affected sinus. The examiner noted the Veteran’s reports of pain and pressures that were brief in duration and tender. Monthly flare-ups were reported. Neither incapacitating or non-incapacitating episodes of sinusitis characterized by headaches, pain, purulent discharge or crusting, or antibiotic treatments were assessed. Sinus surgery was noted to have occurred in 2011. Other findings were noted as sinuses nontender throughout oral cavity and moderate turbinate hypertrophy. T An April 2018 VA examination report shows maxillary and ethmoid sinusitis, chronic sinusitis. The Veteran reported symptoms of trouble breathing through nose, vomiting if excess drainage occurred, and headaches. He was being treated with nasal flushes, medications, and nasal sprays. The examiner noted that the Veteran experienced maxillary and ethmoid sinusitis which resulted in headaches, pain of affected sinus, and tenderness of affected sinus. The examiner was also assessed as having constant sinus pain, pressure, and tenderness of facial sinuses. The Veteran was noted to have had non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting in the past 12 months noted at two. Incapacitating episodes of sinusitis was not assessed. Sinus surgery was noted to have occurred in 2011. A September 2020 VA examination report shows maxillary and ethmoid sinusitis. The examiner noted that the Veteran underwent an endoscopic in 2011, after the surgery he reported improvement. The Veteran reported having to flush his sinuses every day, and experienced headaches when they were not draining. The Veteran was also using Zyrtec and experiencing headaches that caused him to lay down. Current symptoms were noted as headaches, nasal congestion, postnasal drainage, and nasal dryness. Nasal sprays and irrigation were noted to be used. The examiner noted that the Veteran experienced maxillary and ethmoid sinusitis which resulted in episodes of sinusitis, headaches, crusting, congestion, and drainage. Headaches were noted to occur every other day. Non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months were numbered at 7 or more. No incapacitating episode requiring prolonged antibiotics in the past 12 months were assessed. The examiner noted that the Veteran’s sinus condition affected his ability to work. The examiner noted that the Veteran was a retired truck driver who reported that due to frequent headaches at least 3 times a week that caused him to have to lay down and rest, and would not be able to perform his job. Prior to September 23, 2020, in order to warrant the next higher rating, the evidence must show three or more incapacitating episodes or more than six non-incapacitating episodes. The medical evidence indicates that prior to September 23, 2020, at worse he experienced two episodes in a 12 month period as noted in the April 2018 VA examination report. In 2009, the Veteran did require treatment by antibiotics for a 4-6 week period for treatment of sinusitis. While the Veteran treated his sinusitis with antibiotics at one point prior to September 23, 2020, the record does not indicate that the treatment also included bed rest. As such, neither the medical records or VA examination establish three incapacitating episodes or episodes that included headaches, pain, and purulent discharge or crusting. Entitlement to a rating in excess of 10 percent is not warranted prior to September 23, 2020. As of September 23, 2020, in order to warrant the maximum 50 percent rating, the evidence must show radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The evidence does not show the Veteran underwent radical or repeated surgeries. Significantly, while the Veteran had a surgical procedure in 2011, this surgery did not result in chromic osteomyelitis. Additionally, the Veteran has not been assessed as experiencing purulent discharge or crusting after repeated surgeries, which is required for a 50 percent disability rating. As such, a disability rating greater than 30 percent is not warranted under Diagnostic Code 6513-6511. Accordingly, the appeal for an increased rating in excess of 30 percent for sinusitis as of September 23, 2020 is denied. 38 C.F.R. § 4.97, Diagnostic Code 6513-6511. Increased Ratings for Bilateral Knee Disability 3. Entitlement to an initial rating in excess 10 percent for right knee patellofemoral pain syndrome 4. Entitlement to an initial rating in excess of 10 for left knee patellofemoral pain syndrome 5. Entitlement to an initial rating in excess of 10 percent for right knee lateral instability associated with patellofemoral pain syndrome 6. Entitlement to an initial rating in excess of 10 percent for left knee lateral instability associated with patellofemoral pain syndrome Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran's right and left knee patellofemoral pain syndrome are each rated 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261, for noncompensable limitation of motion with pain. 20, 30, 40, and 50 percent evaluations are assigned for extension limited to 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran is also in receipt of additional 10 percent ratings each for the right and left knee disability based upon instability under Diagnostic Code 5257. Under Diagnostic Code 5257, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Multiple private records are associated with the claims file. A March 2009 private treatment record shows that the Veteran’s knees were assessed with bilateral patellofemoral syndrome with lateral mal-tracking and probable early underlying osteoarthritis. An August 2014 private knee examination report shows that the Veteran was diagnosed with degenerative arthritis and osteoarthritis of the knees. Severe painful motion and weakness were reported. The Veteran first experienced bilateral pain on flexion at 45 degrees and extension at 30 degrees. Functional limitation were noted with climbing, walking less than 100 yards, and standing. Recurrent subluxation or lateral instability were not assessed. Ankylosis was not assessed. Semilunar cartilage dislocation, locking, pain and effusion of the knee joints were not assessed. No assistive devices were noted to be required for walking. The private examiner remarked that the Veteran would not be capable of performing gainful employment due to knee symptoms in 2009. Other records noted knee pain, normal gait, and intact reflexes. VA treatment records throughout the appeal period indicate knee pain. An August 2015 VA knee and lower leg examination report shows that the Veteran was diagnosed with patellofemoral pain syndrome of the bilateral knees. The Veteran reported that he experienced chronic knee pain and flare ups every 2 weeks. Stiffness and crepitus were reported. No swelling was reported. He reported that his knee intermittently locked. Giving out of the knees with prolonged sitting was reported when going from sitting to standing. The Veteran reported flare ups that caused him to limit sitting, standing, walking, climbing, or squatting. Pain, weakness, and loss of motion were reported when hee experienced flare-ups. No discoordination with flare ups were reported. Functional impairment after repeated use over time was reported as he could sit 20 minutes, stand 20 minutes and could walk one block. He avoided climbing and squatting. Right knee range of motion was noted as flexion to 125 degrees and extension to 0 degrees with pain noted to cause functional loss. Pain on weight bearing and crepitus were observed. Left knee range of motion was noted as flexion to 125 degrees and extension to 0 degrees with pain noted to cause functional loss. Evidence of pain with weight bearing and crepitus were observed. Repetitive use testing was conducted which showed no additional loss of range of motion or functional loss for both knees. The examiner noted that the evaluation was not conducted after repetitive use over time but that pain, fatigue, weakness, and lack of endurance would cause functional loss. However, the examiner could not estimate in terms of limitation of motion as the Veteran did not report specific enough information to determine actual range of motion during flare ups or following repeated use over time. Muscle strength testing was 5/5 for both knees. Muscle atrophy and ankylosis were not diagnosed. Joint stability testing noted a history of slight lateral instability. Joint stability testing was normal bilaterally. Patellar dislocations, shin splints, stress fractures, or fibular impairments were not assessed. Meniscal conditions were not assessed. The Veteran was noted not to need the use of assistive devices for locomotion. The examiner remarked that the Veteran’s knees appeared normal and with crepitus. No swelling or tenderness were noted. An April 2018 VA knee and lower leg examination report shows that the Veteran was diagnosed with bilateral knee tendonitis, osteoarthritis, knee instability, and patellofemoral pain syndrome. The Veteran reported that he could not sit or stand for more that short periods due to pain and stiffness, tenderness at medial and lateral joint lines, popping sensations, instability, and weakness. The Veteran reported flare ups occurring when he had to stand or sit for a long period time, occurring occasionally and lasting hours. Functional loss was reported as difficulty standing or sitting for long periods due to pain and stiffness, trouble walking for long distance, frequent taking of breaks, and having to stand after a few minutes. Right knee range of motion was noted as flexion to 85 degrees and extension to 0 degrees with pain noted to cause functional loss. Pain on weight bearing and crepitus were observed. Left knee range of motion was noted as flexion to 65 degrees and extension to 0 degrees with pain noted to cause functional loss. Evidence of pain with weight bearing and crepitus were observed. Repetitive use testing was conducted which showed no additional loss of range of motion or functions for both knees. The examiner was unable to say without resort to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups or repetitious. The examiner concluded that there was no conceptual or empirical basis for making such determination without directly observing function under the flare-ups or repeated use over time. Additional factors contributing to the disability were noted as weakened movement causing instability of station, disturbances of locomotion, interference with sitting, and interference with standing. Muscle strength testing was 3/5 for both knees. Muscle atrophy and ankylosis were not diagnosed. Joint stability testing noted a history of slight lateral instability. Joint stability testing also revealed 1+ for medial instability testing. Patellar dislocations, shin splints, stress fractures, or fibular impairments were not assessed. A meniscal condition of joint pain was assessed. The Veteran was noted not to need the use of assistive devices for locomotion. The examiner noted that the Veteran’s knee disability impacted his ability to work as a truck driver. The examiner noted that the Veteran was retired and impact from the knee condition were noted as lack endurance, instability, fatigability, chronic pain, and decreased range of motion. Pain on passive range of motion testing and non-weight bearing was noted. A September 2020 VA examination report shows that the Veteran was diagnosed with right and left patellofemoral pain syndrome. The examiner also noted diagnosis of knee instability and degenerative arthritis affecting the right and left knees. The Veteran reported pain in both knees increasing with and without activities. He reported that he was only able to stand for about 15 minutes and only able to sit for 15 minutes before he had to stretch his legs. He was prescribed medications for the knee pain. No ER visits in the last year for bilateral knee pain were reported. He also reported knee instability and popping sounds. The Veteran reported no flare ups affecting his knees. Functional impairments were reported by the Veteran as not being able to stand for prolonged periods due to knee pain and he had to stretch out frequently. Right knee range of motion was noted as flexion to 135 degrees and extension to 0 degrees with pain noted to cause functional loss. No evidence of pain on weight bearing or crepitus were noted. Left knee range of motion was noted as flexion to 135 degrees and extension to 0 degrees with pain noted to cause functional loss. No evidence of pain with weight bearing or crepitus were noted. Repetitive use testing was conducted which showed no additional loss of range of motion or functions for both knees. The examiner remarked that range of motion testing was not conducted after repeated use over time. However, the examiner did note that pain would limit functional ability with repeated use over time with a reduction of flexion to 130 degrees for both knees. Regarding flare ups, the Veteran reported that he did not experience flare ups therefore, this portion of the examination report was not completed. The examiner reported that there were no other additional contributing factors to the left and right knee disability. Muscle strength testing was 5/5 for both knees. Muscle atrophy and ankylosis were not assessed. Joint stability testing noted a history of slight lateral instability for the right and left knees. Joint stability testing for the bilateral knees were normal for posterior, medial and lateral instability. Patellar dislocations, shin splints, stress fractures, or fibular impairments were not assessed. Meniscal conditions were not assessed. The Veteran was noted not to need the use of assistive devices for locomotion. The examiner noted that the Veteran’s knee disability impacted his ability to work as a truck driver as he could not stand or sit for prolonged periods or shift gears of 18-wheeler due to knee pain. Pain on passive range of motion testing and non-weight bearing was noted. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right and left knee disabilities under Diagnostic Code 5003-5261. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to fatiguability during flare ups and repetitive use over time. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his reported would not result in limitation of extension to 15 degrees or more, as the extension was evaluated at zero degrees throughout. Thus, an increased evaluation for limitation of extension is not warranted. Additionally, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for the right and left knee disability based upon instability. The Board has carefully considered the Veteran’s reports about instability. However, overall, the lay and medical evidence indicates that the right and left knee instability symptoms have more nearly approximating mild severity as noted in the VA examination reports of record. Specifically, at worse, the Veteran right and left knee instability has been characterized as slight as noted in the VA examinations of record. Additionally, objective joint stability testing showed 1+ for medial stability testing during the 2018 VA examination. However, at all other examinations of the Veteran’s knee, no instability was noted. Therefore, the Board finds that the evidence does not indicated that the right and left knee disabilities result in a moderate severity and higher ratings are not warranted. All potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Limitation of flexion is assigned zero, 10, 20, and 30 percent evaluations for limitation to 60, 45, 30, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. At worse, the flexion was limited to 65 degrees during the course of the appeal. Even considering additional functional loss, the evidence did not more nearly approximate 65 degrees for a separate evaluation or 30 degrees for a higher evaluation. Consideration of other diagnostic codes for rating a knee disability, such as Diagnostic Codes 5256, 5258, 5259, 5262, and 5263, is inappropriate as the Veteran's left knee disability does not include the pathology required in the criteria for those Diagnostic Codes of ankylosis, dislocation of the semilunar cartilage, tibia or fibula impairments, or genu recurvatum. 38 C.F.R. § 4.71a. Accordingly, a separate or higher evaluation is not for assignment. REASONS FOR REMAND 7. Entitlement to TDIU A TDIU will be warranted when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). TDIU may be granted when it is established that the service-connected disabilities are so severe, standing alone, as to prevent securing or following a substantially gainful occupation. If there is one service-connected disability, the disability must be rated at 60 percent or more. If there are two or more service-connected disabilities, there must be at least one disability rated 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). An August 2016 private disability evaluation report shows that the examiner assessed the Veteran with bilateral osteoarthritis of the knees. The examiner noted that the Veteran had difficulty standing, walking, and sitting due to pain which lead to him to stop working as a driver in 2009. The examiner remarked that the Veteran was not capable of performing full time competitive work due to the nature of his pain and difficulty with prolonged standing, walking, and sitting. An April 2018 VA examination report shows that the examiner remarked that the Veteran’s service connected knee disability caused the Veteran to be unable to sit or stand for long periods of time without frequent breaks and movement, unable to exert weight as detailed in sedentary work descriptions or sedentary work requiring exerting 10 pound of force would be difficult with his bilateral knee condition. An August 2018 Request for Employment Information form shows that the Veteran had worked from September 2008 to January 2010 as a truck driver working 50 hours per week. A September 2020 VA examination report shows that the examiner remarked that it was at least as likely as not that the Veteran’s service connected disabilities would allow him to conduct light work described as exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. A January 2021 private examination report noted the Veteran’s service-connected disabilities affecting the bilateral knees, headache disorder, and chronic sinusitis resulted in the Veteran becoming disabled. The private examiner noted that the Veterans degenerative changes in the knees made it difficult for the Veteran to stand or sit for long periods of time. Records were noted to indicated he was not capable of walking more than 100 years, using stairs, crouching, kneeling, or standing for long periods of time which prohibited him for working in an active role. The private examiner noted a work history that consisted of being a truck driver, but as the examiner was certified as a Federal Motor Carrier Safety Administration (FMCSA) medical examiner, he would not have certified the Veteran for operating commercial vehicles due to his physical limitations. The pain from prolonged sitting would serve as a distraction from maintaining a sedentary role. Additionally, the unpredictable headaches would contribute to both presenteeism and absenteeism. The private examiner opined that the Veteran was unable to function in the workplace since the contested date of December 29, 2009. The Veteran does not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). However, the evidence suggests the Veteran was unable to work prior during this period due to his service-connected disabilities. The Veteran’s claim for TDIU is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran’s claim for TDIU , to VA’s Director of Compensation Service for extraschedular consideration. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.