Citation Nr: 21029195 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-07 282 DATE: May 12, 2021 ORDER Entitlement to an evaluation of 20 percent prior to October 21, 2014, for right knee degenerative arthritis with instability is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation of 20 percent prior to October 21, 2014, for right knee degenerative arthritis, status post cruciate ligament repair, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent prior to October 21, 2014, for right knee degenerative arthritis with painful flexion, is denied. Entitlement to an initial evaluation in excess of 10 percent prior to January 1, 2018, and to a compensable evaluation from January 1, 2018, through April 5, 2021, for left knee degenerative joint disease with instability is denied, and an evaluation of 10 percent from April 6, 2021, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease with shin splints and painful flexion is denied. Entitlement to a separate rating of 20 percent from July 23, 2019, for left knee degenerative arthritis with a semilunar cartilage tear is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 21, 2014, is denied. Entitlement to a TDIU from January 1, 2019, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to October 21, 2014, the right knee had moderate instability. 2. Prior to October 21, 2014, the right knee had frequent episodes of locking and pain. 3. Prior to October 21, 2014, for right knee had flexion to 90 degrees with pain. 4. Prior to January 1, 2018, left knee had slight instability. 5. From January 1, 2018, through April 5, 2021, the left knee did not have instability. 6. From April 6, 2021, the left knee had slight instability. 7. The left knee has flexion to 95 degrees. 8. From July 23, 2019, the left knee has had frequent episodes of locking. 9. The Veteran was engaged in substantial gainful activity prior to October 21, 2014. 10. The functional impairment from the Veteran's service-connected disabilities has been of such severity effective from January 1, 2019, as to effectively preclude all forms of substantially gainful employment for which his education and occupational experience would otherwise make him qualified. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent prior to October 21, 2014, for right knee degenerative arthritis with instability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5257. 2. The criteria for an evaluation of 20 percent prior to October 21, 2014, for right knee degenerative arthritis, status post status post cruciate ligament repair, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5258. 3. The criteria for an evaluation in excess of 10 percent prior to October 21, 2014, for right knee degenerative arthritis with painful flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5260. 4. The criteria for an initial evaluation in excess of 10 percent prior to January 1, 2018, and to a compensable evaluation from January 1, 2018, through April 5, 2016, for left knee degenerative joint disease with instability have not been met, and the criteria for an evaluation of 10 percent from April 6, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5257; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 5. The criteria for an initial evaluation in excess of 10 percent for left knee degenerative joint disease with shin splints and painful flexion have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5260; 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 6. The criteria for an evaluation of 20 percent from July 23, 2019, for left knee degenerative arthritis with a semilunar cartilage tear, have been met. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5258. 7. The criteria for a TDIU prior to October 21, 2014, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. 8. The criteria for a TDIU from January 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1982 to November 1987. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2018. A transcript is of record. This claim was previously before the Board in August 2018 and November 2020, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent prior to October 21, 2014, for right knee degenerative arthritis with instability 2. Entitlement to an evaluation in excess of 10 percent prior to October 21, 2014, for right knee degenerative arthritis, status post cruciate ligament repair 3. Entitlement to an evaluation in excess of 10 percent prior to October 21, 2014, for right knee degenerative arthritis with painful flexion 4. Entitlement to an initial evaluation in excess of 10 percent prior to January 1, 2018, and to a compensable evaluation from that date, for left knee degenerative joint disease with instability 5. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease with shin splints and painful flexion Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. During the pendency of the appeal, the criteria under Diagnostic Code 5257 were amended, effective February 7, 2021. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the course of a claim, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from February 7, 2021, when the regulations became effective. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provided ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee was rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee was rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee was rated 30 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect since February 7, 2021, Diagnostic Code 5257 provides ratings for recurrent subluxation or instability and patellar instability. Recurrent subluxation manifested by a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 10 percent. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent. An unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, is rated 30 percent. 85 Fed. Reg. at 76463. Patellar instability involving a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker, is rated 10 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker, is rated 20 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker, is rated 30 percent. Note (1) states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 85 Fed. Reg. at 76463. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect prior to February 7, 2021, Diagnostic Code 5262 provided ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Under the rating criteria in effect from February 7, 2021, Diagnostic Code 5262 provides that medial tibial stress syndrome (MTSS), or shin splints, is rated: With treatment for less than 12 consecutive months, for one or both lower extremities, 0 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, 10 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, 20 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, 30 percent. Malunion of the tibia and fibula is evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula, with loose motion, requiring a brace, is rated 40 percent. 85 Fed. Reg. at 76463. The Veteran said at February 2014 VA orthopedic treatment that he was having pain and locking in both knees, with the right knee worse than the left. The right knee also felt unstable. On examination there was no swelling, erythema, effusion, or crepitus in the knees. Range of motion was flexion 0 to 130 degrees bilaterally. McMurray tests were negative in each knee. The assessment was bilateral knee pain and degenerative joint disease, with the right knee worse than the left. It was noted that the Veteran was a candidate for a total right knee replacement, and he received a cortisone injection. At March 2014 VA treatment the Veteran complained of bilateral knee pain. A corticosteroid injection to the right knee had not led to symptom improvement. Both knees locked and caught, and the right knee buckled. On examination the left knee was without swelling, erythema, effusion, and crepitus. There was tenderness to palpation. Range of motion was 0 to 125 degrees. The Veteran had a VA examination in March 2014 at which he reported increased pain, popping, locking, and buckling of the knees. He had recently had steroid injections in both knees. On examination, range of motion in the right knee was flexion to 110 degrees and extension to 0 degrees. There was pain at 100 degrees of flexion. The examiner noted that there was no objective evidence of painful motion. For the left knee, flexion was to 115 degrees with pain at 105 degrees, and extension was to 0 degrees. There was no objective evidence of painful motion. There was no reduction of motion in either knee on repetitive use testing. However, the examiner also noted that on repetitive use there was less movement than normal, pain, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. It is not clear if by less movement than normal, the examiner was noting that flexion in each knee was less than normal even before repetitive testing. The Veteran reported flare-ups in the knees, and described the impact as "any type of weight-bearing." The examiner wrote that it would be impossible without resorting to mere speculation to indicate any additional range of motion loss during a flare-up or over a period of time. There was pain on palpation to the right side. Muscle strength was normal in the lower extremities. On stability tests, there was anterior and medial-lateral instability, and no posterior instability. There was no evidence of or history of recurrent patellar subluxation or dislocation. Stress on either leg caused anterior shin splints. The right knee had frequent episodes of joint locking and joint pain due to a meniscus (semilunar cartilage) condition. The examiner noted that the Veteran had an antalgic gait and transferred to the exam table independently but with difficulty. The Veteran received more injections for right and left knee pain in April 2014. At May 2014 follow-up VA orthopedic treatment the Veteran reported that his bilateral knee pain had been progressing over the past six months and that the right was typically worse than the left. There had been episodes where his legs had given out on him. On examination flexion was to 130 degrees and extension was to 0 degrees. In August 2014 a VA treating physician wrote that the Veteran was followed in the orthopedic clinic for degenerative arthritis of the knees. Conservative measures had failed, and the Veteran was scheduled for a right total knee arthroplasty on October 21, 2014. Once there was adequate recovery, the Veteran would be evaluated for a left knee total arthroplasty. The Veteran had another VA examination in October 2014 at which he reported daily flare-ups with different levels of severity. On examination right knee flexion was to 110 degrees with pain at 100 degrees, and extension was to 0 degrees. There was no objective evidence of painful motion. Left knee flexion was to 110 degrees with painful motion at 110 degrees, and extension was to 0 degrees. There was no reduction in motion on repetitive use testing. The examiner did not feel she could state without resorting to speculation any additional range of motion loss during flare-ups or over a period of time due to pain, weakness, and fatigability. The functional loss of both knees was less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting. There was bilateral tenderness or pain to palpation for the knee joint line or soft tissue. Muscle strength was considered normal in the lower extremities. On stability tests, there was anterior and medial-lateral instability, and no posterior instability. There was no evidence of or history of recurrent patellar subluxation or dislocation. The Veteran had bilateral shin splints with ambulation. The right knee had frequent episodes of joint locking and pain. The Veteran underwent a total right knee arthroplasty on October 21, 2014. At April 2015 VA treatment the Veteran reported catching, clicking, and locking of the left knee. Range of motion was flexion to 120 degrees and extension to 0 degrees without pain. The knee was stable on examination. The Veteran had a VA examination in October 2016. Regarding the left knee, he was diagnosed with osteoarthritis and shin splints, and he did not report flare-ups. Range of motion was flexion to 140 degrees and extension to 0 degrees, and there was no reduction of motion on repetitive testing. There was no pain with weight-bearing, localized tenderness, pain on palpation, or evidence of crepitus. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or flare-ups. The left knee did not have ankylosis, and there was no evidence of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability tests were normal. There were shin splints that did not affect range of motion of the left knee or ankle. The Veteran used a wheelchair on an occasional basis and braces, a cane, and a walker on a regular basis due to both knees. The Veteran testified at the February 2018 Board hearing that the left knee was virtually as symptomatic as the right knee. He had another VA examination in February 2018. Range of motion was flexion to 95 degrees and extension to 0 degrees. The examiner opined the abnormal range of motion did not contribute to functional loss. There was pain on flexion, and no evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or objective evidence of crepitus. On repetitive use testing there was not additional functional loss or range of motion loss after three repetitions. The examiner felt that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. It was impossible without resorting to mere speculation to indicate any additional range of motion loss, pain, weakness, and fatigability compared to the VA examination findings during a flare-up or over a period of time. There was not ankylosis, and joint stability tests were normal. Shin splints were not present. A July 2019 private physical therapy note states that the Veteran had severe left knee osteoarthritis and wore a brace at all times. The left knee caused pain with weightbearing. The Veteran had another VA examination in July 2019. Range of motion was flexion to 95 degrees with pain and extension to 0 degrees with pain, and there was pain when bending, crouching, walking, and standing. There was tenderness over the patella, and there was objective evidence of crepitus. On repetitive use testing, flexion was to 90 degrees and extension was to 0 degrees. Pain, fatigue, weakness, lack of endurance, and incoordination limited functional ability with repeated use over time and during flare-ups, reducing flexion to 90 degrees while not reducing extension. The examiner felt that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups, which was pain in the left knee that was rated as nine out of ten and chronic pain in his shins. There was no objective evidence of pain on passive range of motion testing or with nonweight-bearing. Muscle strength was reduced, and there was no left knee ankylosis or instability. The shin splints affected the range of motion of the left knee but not the left ankle. There has been a meniscus (semilunar cartilage) tear in the left knee with frequent episodes of locking. The Veteran used a walker and had an antalgic gait. In May 2020 a VA examiner reviewed the record to provide a retrospective opinion related to the 2014, 2016, and 2018 examinations and wrote that it would be difficult to examine the Veteran during a flare-up. As noted in the November 2020 Board remand, retrospective opinions were not provided regarding ranges of motion of the left knee in active and passive motions, with weight-bearing and nonweight-bearing, and after repetitive use at the 2014, 2016, and 2018 examinations and for the right knee at the 2014 examination. In December 2020 a VA examiner reviewed the record and wrote that retrospective opinions could not be provided without resorting to speculation. In January 2021 she further wrote that passive range of motion, range of motion in both weight-bearing and nonweight-bearing, and range of motion after repetitive use was not performed at the older examination. It is not feasible to estimate them years later. However, it was noted that the passive range of motion would be consistent with the active range of motion, as they are usually similar. At April 6, 2021, private orthopedic treatment, it was noted that the Veteran had degeneration of the left knee that affected quality of life and daily activities. The pain had not been improved with conservative treatment. The left knee had 5 to 10 degrees of medial lateral laxity, and flexion was to 90 degrees. X-rays showed severe end-stage degeneration. There was tri-compartmental cartilage loss. A total left knee replacement was recommended. Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. A VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In addition, any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. at 36. The Board notes that the claims have been remanded twice for retrospective opinions in light of the decisions in Correia and Sharp. The January 2021 examiner's opinion indicates that it is not feasible based on the record to provide further estimates based on the VA examinations from 2014, 2016, and 2018 beyond those already provided. Therefore, attempting to obtain an additional retrospective medical opinion would lead to further delay in adjudicating the Veteran's claim without any benefit. The record does not show ankylosis of either knee or genu recurvatum. Therefore, Diagnostic Codes 5256 and 5263 are not applicable. See 38 C.F.R. § 4.71a. a. Right Knee Prior to October 21, 2014 Currently, for the right knee prior to October 21, 2014, separate 10 percent ratings are in effect for instability under Diagnostic Code 5257, removal of semilunar cartilage under Diagnostic Code 5259, and painful flexion under Diagnostic Code 5260. The Veteran reported right knee instability and locking at February 2014 treatment, and a McMurray test was negative. The right knee was noted to buckle at March 2014 VA treatment. At the March 2014 VA examination the right knee was noted to have frequent episodes of locking and joint pain due to a meniscus (semilunar cartilage) condition. The Veteran was also noted to have frequent episodes of locking and joint pain at the October 2014 examination. The Board finds that the Veteran is entitled to an increased rating of 20 percent for the right knee prior to October 21, 2014, due to moderate recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. He does not qualify for a 30 percent rating because the record does not show severe recurrent subluxation or lateral instability. See id. It is noted that at the March 2014 and October 2014 examinations there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran was noted to have right knee frequent episodes of joint locking and joint pain due to a meniscus (semilunar cartilage) condition at the March 2014 and October 2014 examinations. The Veteran currently has the maximum schedular rating under Diagnostic Code 5259 for removal of semilunar cartilage. See 38 C.F.R. § 4.71a. The Board finds that the Veteran instead qualifies for a 20 percent rating under Diagnostic Code 5258 due to frequent episodes of locking due to the semilunar cartilage condition. See id. This replaces the 10 percent rating under Diagnostic Code 5259 because it is for the same symptoms, and is the highest rating available under the schedular criteria. See id. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Veteran does not qualify for an evaluation of 20 percent for right knee flexion prior to October 21, 2014, because the record shows that flexion was to at least 90 degrees, while a 20 percent rating requires that it be limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Flexion has not been limited to 45 degrees, as required for a 10 percent rating. See id. As discussed above, the record shows pain on flexion, and the Veteran has therefore properly been assigned a 10 percent rating due to the pain. The Veteran does not qualify for a compensable evaluation for right knee extension prior to October 21, 2014, because the record does not show that extension was limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The treatment and examination records show that extension was to 0 degrees. The Veteran also does not qualify for a separate rating under Diagnostic Code 5262 because the record does not show impairment of the tibia and fibula with nonunion or malunion. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. The estimated or actual limitations in range of motion with repetitive use and flare-ups, and pain, were considered above. The additional limitations are contemplated in the currently assigned ratings for the right knee for the period prior to October 21, 2014. The 20 percent rating under Diagnostic Code 5258 for the right knee prior to October 21, 2014, is the highest schedular rating available. See 38 C.F.R. § 4.71a. The Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). Prior to engaging in an extraschedular analysis, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) ("We hold that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered."); see Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed herein, there are three separate compensable ratings in effect for symptomatology related to the right knee disability under Diagnostic Codes 5257, 5258, and 5260. Furthermore, the record reflects that the Veteran did not require frequent hospitalization for the right knee disability prior to October 21, 2014, and that the manifestations of the disability were not in excess of those contemplated by the assigned ratings. Although the Veteran experienced occupational impairment, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. b. Left Knee The Veteran is seeking an evaluation in excess of 10 percent prior to January 1, 2018, and a compensable evaluation from that date, for left knee degenerative joint disease with instability. There was anterior and medial-lateral instability on testing at the March 2014 and October 2014 examinations. At the October 2016 VA examination, the joint stability tests were normal, and there was no evidence of recurrent subluxation or lateral instability. Joint stability tests were again normal at the February 2018 examination. The July 2019 VA examiner noted that there was not instability related to the left knee. At the April 6, 2021 private treatment, the left knee had 5 to 10 degrees of medial lateral laxity. Under the rating criteria in effect prior to February 7, 2021, the Veteran does not qualify for an evaluation in excess of 10 percent prior to January 1, 2018, under Diagnostic Code 5257 because the record does not show moderate recurrent subluxation or lateral instability of the right knee. See 38 C.F.R. § 4.71a. It is noted that there was no evidence of instability at the October 2016 examination. Regarding the period from January 1, 2018, through April 6, 2021, the record does not show recurrent subluxation or lateral instability, and therefore the Veteran did not qualify for a compensable evaluation. The Veteran qualifies for a rating of 10 percent from April 6, 2021, because the treatment record shows slight instability. The Veteran does not qualify for an evaluation in excess of 10 percent because the record does not show moderate recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. At the April 6, 2021, VA treatment it was noted that the Veteran had right knee instability that caused him to use a brace and switch weight to the left knee. Left knee instability was not reported, although the test discussed above showed instability. Under the rating criteria in effect from February 7, 2021, the Veteran does not qualify for a compensable evaluation prior to April 6, 2021, and to an evaluation in excess of 10 percent from April 6, 2021, based on recurrent subluxation or instability. As discussed above, the record does not show instability in the period from February 7, 2021, through April 5, 2021. See 85 Fed. Reg. at 76463. The Veteran does not qualify for an evaluation in excess of 10 percent from April 6, 2021 based on recurrent subluxation or instability because the record does not show a ligament tear that a medical provider prescribed an assistive device specifically for it. See id. At the July 23, 2019, VA examination it was noted that there had been a meniscus (semilunar cartilage) tear in the left knee with frequent episodes of locking. Therefore, the Veteran qualifies for a separate 20 percent rating under Diagnostic Code 5258 from that date. See 38 C.F.R. § 4.71a. This is the highest schedular evaluation available under this Diagnostic Code. Diagnostic Code 5259 is not applicable since the record does not show removal of semilunar cartilage and since the symptoms are rated under Diagnostic Code 5258, which provides a higher rating. See 38 C.F.R. § 4.14. The Veteran does not qualify for an evaluation of 20 percent for left knee flexion because the record shows that flexion was to at least 90 degrees, while a 20 percent rating requires that it be limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Flexion has not been limited to 45 degrees, as required for a 10 percent rating. See id. As discussed above, the record shows pain on flexion, and the Veteran has properly been assigned a 10 percent rating due to the pain. However, the record does not show that he meets the criteria for a 20 percent rating. See id. The Veteran does not qualify for a compensable evaluation for right knee extension because the record does not show that extension was limited to 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The treatment and examination records show that extension was to 0 degrees. The Veteran also does not qualify for a separate compensable rating under the criteria in effect for Diagnostic Code 5262 prior to February 7, 2021, because the record does not show impairment of the tibia and fibula with nonunion or malunion. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Veteran does not qualify for a separate compensable evaluation for shin splints under the criteria in effect from February 7, 2021, because the record does not show that the they required treatment for no less than 12 consecutive months and were unresponsive to shoe orthotics or other conservative treatment. See 85 Fed. Reg. at 76463. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. The estimated or actual limitations in range of motion with repetitive use and flare-up and the left knee pain, were considered above. The additional limitations are contemplated in the currently assigned ratings for the left knee. The 20 percent rating under Diagnostic Code 5258 for the left knee from July 23, 2019, is the highest schedular rating available. See 38 C.F.R. § 4.71a. The Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer, 22 Vet. App. at 24. Prior to engaging in an extraschedular analysis, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan, 31 Vet. App. at 168; see Thun, 22 Vet. App. at 115. As discussed herein, there are three separate compensable ratings in effect for symptomatology related to the left knee disability under Diagnostic Codes 5257, 5258, and 5260. Furthermore, the record reflects that the Veteran did not require frequent hospitalization for the left knee disability and that the manifestations of the disability were not in excess of those contemplated by the assigned ratings. Although the Veteran experienced occupational impairment, there is no indication in the record that the average industrial impairment from the left knee disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. 6. Entitlement to a TDIU prior to October 21, 2014 7. Entitlement to a TDIU from January 1, 2019 The Veteran was rated 100 percent disabled from October 21, 2014, through December 31, 2018. Therefore, this period will not be considered for a TDIU herein. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran wrote in May 2014 that his level of education was an associate degree. The record show that he went to culinary school and worked as a chef and restaurant owner until October 2014. Prior to October 21, 2014, service connection was in effect for right knee degenerative arthritis, status post cruciate ligament repair, rated 20 percent; right knee degenerative arthritis with instability, rated 20 percent, right knee degenerative arthritis with painful flexion, rated 10 percent; left knee degenerative joint disease with instability, rated 10 percent; and left knee degenerative joint disease with painful flexion, rated 10 percent. The combined rating was 50 percent, and therefore the Veteran did not meet the schedular criteria of 38 C.F.R. § 4.16(a). However, a TDIU can still be awarded for this period if it is established by the evidence of record that service-connected disabilities rendered the veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation Services for initial adjudication. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). At the March 2014 VA examination it was noted that the Veteran worked as a chef and was on his feet all day, which cause pain. In April 2014 the Veteran wrote that his knees had become dangerously unreliable to work on, and that working as a certified chef over decades with his knee issues had taken a toll on his physical and emotional health. It was painful for him to perform his duties for any length of time on his feet. The Veteran further wrote that he opened a small café in 2012. The Veteran was self-employed and could not afford to hire any help. Therefore, he was forced to "give up his café." The Veteran wrote in May 2014 that he was working 75 hours a week at his restaurant. In July 2014 the Veteran wrote in a letter to the commission of the airport where his restaurant was located that his doctors had told him that he may not be able to return to full time chef duties after his operations. He was closing his restaurant as of October 2014 because of this, a lack of business, and his inability to grow the catering component of the business. At the October 2014 VA examination it was noted that the Veteran could not walk more than one city block without stopping to rest. He had closed his restaurant due to his knee condition. The October 2014 examiner felt that the Veteran was unable to work because of his knees. The Veteran testified at the February 2018 hearing that he last had gainful income in 2014 and that it was impossible to work in the state that he was in. The February 2018 VA examiner noted that the Veteran was "deconditioned and weak." He was unable to bear full weight on the right leg. It was noted at July 2019 private physical therapy that the Veteran needed a rolling walker to avoid falling because of his knees. The Veteran said at the July 2019 VA examination that he could not stand for more than 10 minutes. The examiner wrote that the functional impact was pain when bending and crouching, walking, and standing. The Veteran could no longer work as chef as a result of his disability. The Veteran is not entitled to a TDIU for the period prior to October 21, 2014, because the record shows that he was operating his restaurant until that month. Therefore, he was engaged in substantial gainful activity. See 38 C.F.R. § 4.16. Regarding the period from January 1, 2019, service connection has continued to be in effect for the knee disabilities. The right knee disability is rated 60 percent, and the combined rating is 80 percent. Therefore, the schedular criteria of 38 C.F.R. § 4.16(a) have been met. The record shows that the Veteran has continued to have severe limitations due to his knees. It was noted at the February 2018 examination that he was "deconditioned and weak" and that he could not bear full weight on the right leg. The Veteran can only stand for a short period and needs an assistive device to walk. He could not perform his prior work as a chef due to the service-connected knee conditions. Furthermore, the Veteran has continued to have knee pain, which would interfere with concentration while attempting to perform any work, and which makes moving around difficult. In light of the above, the Board finds that the most competent and probative evidence demonstrates that it is at least as likely as not that the Veteran was unemployable due solely to the combined effect of the service-connected disabilities from January 1, 2019. A TDIU is therefore granted from that date. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.