Citation Nr: 0711108 Decision Date: 04/13/07 Archive Date: 04/25/07 DOCKET NO. 96-27 632A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus due to Agent Orange exposure. 2. Entitlement to service connection for degenerative joint disease of the right knee secondary to service-connected residuals of a left knee injury. 3. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for right hip nerve damage as the result of surgery in January 1994. 4. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for loss of use of the legs as the result of surgery in January 1994. 5. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for weakness of the upper extremities as the result of surgery in January 1994. 6. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disability as the result of surgery in January 1994. 7. Entitlement to a rating in excess of 10 percent for the residuals of a left knee injury. 8. Entitlement to a rating in excess of 10 percent for post- operative scars of the left knee. 9. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 1995, March 1996, and December 2002 by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2003, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were remanded for additional development in March 2004. The Board noted in its March 2004 decision that the veteran appeared to have raised additional issues of entitlement to compensation for permanent lung damage, difficulty breathing, fissures, hemorrhoids, neck scar, umbilical hernia, morbid obesity, and chronic obstructive pulmonary disease (COPD). These matters are again referred to the RO for appropriate action. The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues addressed in this decision was obtained. 2. A right knee disorder is shown by clear and unmistakable evidence to have existed prior to service and not to have been aggravated by active service; the veteran's present degenerative joint disease of the right knee is not shown to have been otherwise incurred as a result of an injury or disease during active service nor to have been aggravated as a result of a service-connected disability. 3. The persuasive evidence demonstrates a right hip nerve damage disability was not incurred as a result of VA treatment. 4. The persuasive evidence demonstrates the veteran's loss of use of the legs or an additional loss of use of the legs disability were not incurred as a result of VA treatment. 5. The persuasive evidence demonstrates the veteran's weakness of the upper extremities or an additional weakness of the upper extremities disability were not incurred as a result of VA treatment. 6. The persuasive evidence demonstrates the veteran's low back disability or an additional low back disability were not incurred as a result of VA treatment. 7. The evidence demonstrates the veteran's service-connected residuals of a left knee injury are presently manifested by no more than symptomatic removal of semilunar cartilage with evidence of arthritis, pain, and passive leg motion from 0 to 100 degrees, including as a result of pain and dysfunction. 8. The veteran's service-connected post-operative scars of the left knee are manifested by no more than painful superficial scarring without objective evidence of unstable scars or limitation of function due to scarring. 9. The medical evidence of record does not establish that the veteran has service-connected disabilities manifested by the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, the relevant permanent impairment of vision of both eyes, or ankylosis of the hips or knees. CONCLUSIONS OF LAW 1. The veteran's degenerative joint disease of the right knee was not incurred in or aggravated by service nor as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (effective before and after October 10, 2006). 2. The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for right hip nerve damage or an additional disability as a result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 1991 and West 2002); 38 C.F.R. § 3.358 (2006). 3. The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for loss of use of the legs or an additional disability as a result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 1991 and West 2002); 38 C.F.R. § 3.358 (2006). 4. The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for weakness of the upper extremities or an additional disability as a result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 1991 and West 2002); 38 C.F.R. § 3.358 (2006). 5. The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for low back disability or an additional disability as a result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 1991 and West 2002); 38 C.F.R. § 3.358 (2006). 6. The criteria for a rating in excess of 10 percent for residuals of a left knee injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2006). 7. The criteria for a rating in excess of 10 percent for post-operative scars of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118 Diagnostic Code 7804 (2006). 8. The criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or adaptive equipment only, have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002); 38 C.F.R. § 3.808 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In this case, the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in October 2002, November 2002, April 2004, and March 2005. Adequate opportunities to submit evidence and request assistance have been provided. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in October 2006. The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to move forward with these claims would not cause any prejudice to the appellant. Service Connection Claim - Factual Background Service medical records include a March 1973 Report of Medical History in which the veteran denied any history of trick or locked knee. His March 1973 enlistment examination revealed a normal clinical evaluation of the lower extremities. In a service medical record dated in May 1974, the veteran reported he had twisted his knee approximately two months earlier, and that cartilage had been removed from his right knee in 1970. The examiner noted there was no evidence of inflammation or swelling, but that there was tenderness to the posterior knee with a pulling sensation. The diagnosis was possible tendonitis. Hospital records dated from January 1976 to July 1976 show the veteran underwent a left knee meniscectomy in August 1975 and that he had been hospitalized immediately after he arrived at his permanent base in Thailand for left knee pain. Physical examination of the right knee revealed a healed anterior medial knee scar. The quadriceps muscles and range of motion were normal. Squatting ability was full, ligaments were intact, there was no effusion, and McMurray's testing was negative. An addendum to that hospital report included a diagnosis of mild right knee traumatic arthritis. An August 1976 report noted right knee range of motion from 0 to 130 degrees. The ligaments were stable. McMurray's testing was negative. There was a healed scar. VA examination in January 1977 noted no complaints to the right knee. X-rays of the knees were negative. Private medical records dated in February 1981 show the veteran stated he had been injured in a railroad accident in July 1977 and that he had been unable to walk properly since then. The physician noted he had difficulty walking due to back pain and that there was some apparent muscle strength impairment to the right lower extremity. VA X-ray examination of the knees in May 1990 revealed minimal degenerative changes with slight narrowing of the medial joint spaces, bilaterally. VA Aid and Attendance examination in November 1996 noted the veteran had a history of multiple back disabilities due to motor vehicle accidents. There was marked motor weakness to the lower extremities. In statements and personal hearing testimony in support of his claim the veteran asserted that his present right knee degenerative joint disease has been aggravated by his service-connected left knee disability. He testified in October 2003 that he had initially injured his right knee during high school and had undergone surgery prior to service. He stated that the right knee disorder had gotten worse over the years because of increased stress and strain due to weakness in the left knee. A VA orthopedic examination in September 2005 was performed by two orthopedic surgeons. It was noted that the veteran complained of generalized pain above the knees and that he had no motor function in the lower extremities. The examiner also noted the veteran was very obese and that he presented in a motorized wheelchair for examination. Motor functions were 0/5 to the hip flexors and extensors, to the knee flexion/extension, and to the ankle flexion/extension. There was some flickering of the extensor digitorum longus of the bilateral toes. Range of motion of the right knee was from 5 to 100 degrees. Varus and valgus stress was stable. There was joint line tenderness and any motion increased pain, weakness, and fatigue. No effusion was palpated and there was no instability or ankylosis. Gait could not be examined because he did not walk. It was the examiner's opinion that the veteran had early onset osteoarthritis prior to service as a result a football injury. The present right knee arthritis was not believed to be secondary to the left knee disorder and was a natural continuation or progression of his pre-existing arthritis. It was not felt that there was any increase in pathology due to the service-connected left knee disability. Analysis Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2006). VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) (as it existed prior to May 2005) is inconsistent with 38 U.S.C. §§ 1111, 1132 to the extent that it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under section 1111." Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court noted that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. Id. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006). In cases involving aggravation by active service, the rating is to reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. 38 C.F.R. § 3.322(a) (2006). The Court has recognized that temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, did not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective after October 10, 2006); see 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). Service connection can be granted for certain diseases if manifest to a degree of 10 percent or more within one year of separation from active service. Where a veteran served 90 days or more of continuous, active military service during a period of war and certain chronic diseases (including arthritis) become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2006). Based upon the evidence of record, the Board finds a right knee disorder is shown by clear and unmistakable evidence to have existed prior to service and not to have been aggravated by or during active service. Although service medical records show the veteran complained of right knee pain in May 1974, subsequent service examinations revealed no right knee complaints. There is no X-ray examination evidence of arthritis manifest within the first post-service year and no evidence of an increased right knee disorder for many years after service. The Board also finds the veteran's present degenerative joint disease of the right knee is not shown to have been otherwise incurred as a result of an injury or disease during active service nor to have been aggravated as a result of a service- connected disability. The September 2005 VA examiner's opinion is persuasive that the present right knee disorder is unrelated to his service-connected left knee disorder. Although the examiner did not provide a clear, specific opinion as to whether the right knee disorder had been aggravated by a left knee disability prior to the veteran's having become unable to walk, it is clear that the claims file was thoroughly reviewed and that the examiner believed the disabilities were independent entities and were unrelated. It is also significant to note that there is no medical evidence of any increased right knee symptomatology prior to the veteran's industrial accident in July 1977 and subsequent ambulation problems. While the veteran may sincerely believe that his right knee disorder was aggravated as a result of his service-connected disability, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claim. 1151 Claims - Factual Background Private medical records dated in November 1979 noted the veteran sustained job-related injuries in July 1977 with neck and back problems. X-rays of the lumbar spine at that time revealed congenital spina bifida occulta and X-rays of the cervical spine revealed mild changes at C5-C6 and prominent changes with disc space narrowing and osteophyte formation at C6-C7. Records dated in February 1981 show the veteran stated he had been injured in a railroad accident in July 1977 and that he had been unable to walk properly since then. The physician noted he had difficulty walking due to back pain and that there was some apparent muscle strength impairment to the right lower extremity. On VA examination in July 1982 the veteran complained of a loss of power to the right side of the body with numbness and incapacitation when bending. He reported a complete loss of upper extremity control, since 1978. The diagnoses included lumbar disc disease and cervical sprain at C5, 6, and 7. VA hospital records dated in January 1994 show the veteran underwent a C6 carpectomy with anterior spinal fusion at C5-7 with an ileac crest bone graft. In a Request for Administration of Anesthesia and for Performance of Operation and Other Procedures, dated January 24, 1994, the veteran acknowledged the risks and complications of the procedure had been explained to him and consented to the operation. Hospital records note that he procedure was performed on January 25, 1994, and that he tolerated the procedure well with no complications. Postoperatively, he admitted to decreased pain and greater strength in his upper arms. Records show his postoperative course was uncomplicated and that he was walking without difficulty. He was discharged to home on January 30, 1994, in stable and good condition. Hospital records dated from January 31, 1994, to February 24, 1994, show that he was readmitted to the facility after he complained of continued discomfort and difficulty with activities of daily living after having been discharged. An examination of the right hip was normal. There were no specific dermatomal findings on neurological examination. It was noted that the veteran had been informed that he should be up and ambulating and proceeding to physical therapy, but that he had expressed some reluctance to increasing his activities. Hospital records dated from January to May 1994 noted diminished strength to the extremities, but no motor or sensory deficits on neurological examination. Records show he was treated for deep vein thrombophlebitis in the right leg and diffuse pulmonary embolism. At the time of discharge he was much improved and was referred for continuation of physical therapy. VA neurology treatment records dated in June 1994 noted the veteran ambulated with minimal support. There were no focal findings and no diagnosis was provided. Physical therapy notes dated in July 1994 noted the veteran performed ambulation exercises on parallel bars and supported his own weight in a shuffling-type reciprocal gait pattern. An October 1994 report noted he had sustained injuries in a motor vehicle accident in October 1993 that led to his cervical spine fusion in January 1994. It was noted that he stated that since that surgery he had a right hip nerve injury. He complained of constant neck pain and occasional numbness to the upper extremities with a sharp shooting pain in the right hip. It was also noted that he reported he had done very little walking since January 1994 because of the sharp pain that would cause him to fall, especially if he stood up straight. The examiner noted that rehabilitation potential was only fair because the veteran appeared to magnify some of his symptoms. A December 1994 report noted the veteran stated that a nerve was injured in his right hip when the bone was harvested for his January 1994 surgery. He complained of persistent pain. VA orthopedic examination in April 1995 noted the veteran ambulated in a wheelchair and that he claimed he was unable to walk due to right groin pain as a result of nerve trauma during bone graft harvesting. The examiner noted lumbar spine range of motion studies could not be performed due to the veteran's inability to stand without supports as a result of complaints of pain. The examiner noted there was no evidence of muscle atrophy and that deep tendon reflexes were 2+. There was hypesthesia in a nondermatomal distribution over the legs. The diagnoses included status post fusion at C4-6 and degenerative lumbar disc disease with biomechanical low back pain. VA hospital records show that in October 1995 the veteran was admitted because of left shoulder pain. He also reported that he had pain in the right hip that made him fall as he was transferring from his wheelchair prior to admission. It was noted he had been wheelchair bound most of the time due to chronic pain. Examination of the extremities revealed 1+ leg edema with no focal deficits. Posterior tibial and dorsalis pedis pulses were strong. The veteran's activities were to be as tolerated and it was noted he continued to be under the care of physical therapy. In correspondence dated in May 1996 the veteran reported that he had lost the use of his legs. In a July 1996 statement he asserted he had lost the use of his legs and was unable to walk because of a damaged right hip nerve. VA aid and attendance examination in November 1996 noted the veteran required an attendant to come to the hospital and was unable to walk or drive. Examination of the upper extremities revealed he did not have any strength and had no coordination. He was unable to feed, fasten clothing, bathe, or shave by himself and needed help to go to the toilet. An examination of the lower extremities revealed he could not stand up, could not keep his balance, and could not walk due to severe motor weakness of the lower extremities. It was noted he was unable to protect himself from any hazard or danger. In an October 2003 VA Form 9 the veteran asserted that he had a total loss of use of his lower extremities as a result of VA surgery in January 1994. He stated that prior to that surgery he had been able to walk into the hospital, but that since then he had been an incomplete quadriplegic. At his personal hearing in October 2003 the veteran testified that the reports stating that he had improvements after his January 1994 surgery were completely false. He stated that the procedure to relieve pressure from his spinal cord that was the purpose of the surgery was never really done. He reported that after the surgery he could no longer walk and that when bone had been taken from his right hip it caused nerve damage. The veteran and his spouse testified, in essence, that since the January 1994 surgery he had been unable to do anything. VA spine examination in September 2005 by Dr. C.W., an orthopedic surgeon, summarized the veteran's reported medical history including his statements that after the January 1994 procedure he had been unable to walk and had developed significant weakness and loss of independence. It was noted that in discussions as to the information provided in his charts the veteran and his spouse asserted the reports were not true. They stated he had been unable to ambulate, was wheelchair bound, and had no motor use of his legs during his hospital stay in 1994. The veteran stated he had been unable to move his lower extremities at all since his surgical procedure. The examiner noted the veteran's subjective complaints included pain primarily in the mid cervical spine with occasional radicular symptoms down the upper extremities. He had constant hand numbness and episodic radicular symptoms. It was noted that he continued to be active and played wheelchair games such as shot-put contests. He reported he had some increased right shoulder pain, but did not state whether or not this contributed to his radicular/radiation pain symptoms. He used a TENS unit for his lumbar pain. The examiner stated it was difficult to pinpoint any severity or frequency of his symptoms and that he stated they were constant, incapacitating, and chronic. He had generalized weakness to the upper and lower extremities that was nonspecific. He complained of a significant functional impairment and stated he was sometimes too fatigued to even use his electric wheelchair. He originally denied bowel and bladder dysfunction, but subsequently stated that since his surgery he had developed bowel and bladder dysfunction. When pressed on this issue he described sometimes not being able to get to the bathroom on time and sometimes an inability to maintain control. He was unable to distinguish between these two reports. On cervical spine range of motion studies the veteran was able to bring his chin to his chest with flexion which did not reproduce any radicular symptoms. He initially stated he only had midline cervical pain, but with prompting he stated he had some radicular pain. He did not demonstrate any discomfort during the examination. He stated he had pain at the end points of active range of motion; however, the examiner stated that when passively moved beyond this point he did not have any noticeable discomfort. There were no obvious signs of wincing or spasms throughout these movements, but there were complaints of some midline pain and some mild spasm appreciated as muscular paraspinality in the lower cervical region. There was no weakness, incoordination, or fatigue during range of motion and no change in function or symptoms with repetitive motion. An examination of the lumbar spine was limited by the veteran's wheelchair position, but no paraspinal spasm was appreciated. He complained of midline point tenderness to palpation to the cervical, thoracic, and lumbar spines diffusely along the spinous processes, but not at any one specific level. Flexion was limited by body habitus and he complained of pain at only approximately 40 degrees of flexion. Repetitive range of motion studies could not be performed due to complaints of pain on extension, lateral side bends, and rotations could not be examined due to his position in his wheelchair. Neurological examination of the upper extremities revealed symmetric 3+/5 to 4/5 motor strength in the deltoids, triceps, biceps, wrist extensors, wrist flexors, and hand intrinsics. There was diminished, but present, light touch in the ulnar three digits and bilateral cubital and carpal tunnel Tinel's signs. The examiner stated it was difficult to assess the reliability of the motor examination because the findings were not reproducible and sometimes during observation he was able to move his upper extremities without any difficulty while at others he was only able to give a minimal effort. When asked about this, it was noted the veteran stated he was fatiguing and unable to put up more of a concentrated effort. An examination of the lower extremities revealed 0/5 motor strength in the iliopsoas, quadriceps, hamstrings, tibialis, anterior extensor hallucis longus, and gastrocsoleus. There were no voluntary motor functions appreciated throughout the examination of the lower extremities, but there was some episodic firing of his extensor digitorum longus of the second digit on the left while performing the neurologic examination which appeared to be a spasm and was not reproducible or voluntary. The examiner noted no brachioradialis , triceps, or biceps reflexes were appreciated to the upper extremities. A mild patellar reflex was obtained at one time on his right lower extremity, but was not reproducible. There were no other reflexes to the ankles or patellae. Light touch sensation was normal to the thighs, but was uniformly diminished in a nondermatomal pattern distal to the patellae. The veteran reported diminished light touch and pinprick sensation, but was able to sense pinprick as pressure. He had no proprioceptive sense as subjectively assessed with examination of the position of his toe and ankle. There was an unequivocal Babinski sign and a negative Hoffman sign in his upper extremity. Focal examination of his right surgical incision revealed it was well healed. There was light touch sensation in the distribution of the lateral femoral cutaneous nerve. The examiner stated the veteran's complaints were primarily to the groin and were more consistent with intraarticular hip pathology. The examiner noted that the veteran had multiple complaints in his lower extremities and that there appeared to be a large component of diabetes mellitus that would explain his nondermatomal diminished sensation. It was further noted, however, that it was difficult to explain the exact cause of the loss of use of his lower extremities and that it was difficult to ascertain the effort pursued throughout the examination in regard to his complaints of upper extremity weakness. The examiner noted the conflicts between the veteran's reported history and the information provided in his charts, but stated that his upper extremity symptoms appeared to have resolved and then recurred. As he was able to maintain some level of functioning and able to participate in wheelchair games, the examiner found no evidence to suggest that these upper extremity disabilities had any relationship to the surgery. The examiner also found that the lower extremities did not appear to have an organic cause that could be easily associated with his 1994 cervical spine surgery and there was no documentation to support the veteran's contentions. It was noted there as no evidence to suggest that these disabilities had any relationship to the surgery. The examiner further found that the veteran had intact light touch sensation to the right lateral femoral cutaneous nerve claimed to have been injured during the harvesting of the iliac crest graft. It was noted that since this was primarily a sensory nerve with no motor component and as he described adequate sensation in the region of this innervation it was logical to assume that the nerve was still intact. His groin and hip complaints were more consistent with an intraarticular hip pathology as opposed to a lateral femoral cutaneous nerve injury. The examiner stated there was no evidence to support the contention that a right lateral femoral cutaneous nerve was injured as part of the veteran's VA surgery. A separate September 2005 VA orthopedic examination revealed equal light touch sensation to the anterior thigh at the location of the lateral femoral cutaneous nerve. The examiner noted there was normal sensation in this distribution and that motion of the right hip should not cause any pain from an injury to the lateral femoral cutaneous nerve. The pain on motion of the right hip was found to be unrelated to any nerve damage from the 1994 cervical spine surgery and was possibly due to some right hip arthritis unrelated to the previous surgery. The examiner also noted that the veteran had at least 4/5 upper extremity motor strength, seemed to have no problems operating the hand controls on his motorized wheelchair, and that he reported playing shot-put in wheelchair games. It was doubted that someone claiming such significant weakness in the upper extremities would be able to participate in this sport. In response to specific questions identified the examiner found the current pain in the anterior part of the groin that radiated to the other side was unrelated to any right hip nerve damage. It was noted that any nerve damaged from taking an iliac crest bone graft would be the lateral femoral cutaneous nerve which was a sensory nerve and that there was normal sensation in this distribution. It was unlikely that his pain on right hip motion was related to the previous surgery. As to the veteran's claims of the loss of use of his legs since surgery, the examiner noted a review of the evidence revealed this was not true. The examiner was unsure if the veteran's lack of lower extremity motor function was voluntary. It was noted that if there had been a problem with the operation at the C5-6-7 level he would most likely be a complete quadriplegic without upper extremity function. If the surgery had led to a lower extremity motor problems he should also have a complete sensory loss. It was noted he had an abnormal sensation in the lower extremities, but that this was probably due to his peripheral neuropathy from diabetes. The examiner opined that anatomically and medically there was no evidence that he had lost the use of his lower limbs as a result of surgery. There was also no evidence to suggest that the 1994 surgery led to upper extremity weakness. It was noted that if the surgeon had damaged the spinal cord he would be a quadriplegic and if a nerve root had been injured there would only be weakness and sensory loss on one side. The reported weakness was also described as difficult to assess because of an inconsistent motor examination. Reconciled examination findings were provided including no lateral femoral cutaneous nerve damage, loss of use of the legs unrelated to surgery, weakness of the upper extremities which did not appear related to the cervical spine surgery, and lower back disability that was unrelated to the cervical spine surgery. A separate September 2005 VA neurology examination report noted concurrence with the findings of the two VA orthopedic surgeons. It was also noted that the claims file was available and reviewed. The neurologist stated it was unlikely that there was any relationship between the veteran's claimed right hip nerve damage, loss of use of the legs, weakness of the upper extremities, and low back problems and the January 1994 cervical spine surgery. There was no causal relationship between the surgery and his complaints. Analysis During the course of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151 were revised. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation...awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991). In 1991, the Court invalidated 38 C.F.R. § 3.358(c)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd, Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). The United States Supreme Court (Supreme Court) in affirming the Court's decision held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability and that there need be no identification of "fault" on the part of VA. In March 1995, VA published amended regulations to conform to the Supreme Court decision. The revised provisions of 38 C.F.R. § 3.358 stated that where it is determined that there is additional disability resulting from an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment compensation will be payable for such additional disability. 38 C.F.R. § 3.358 (1995). Subsequently, the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997, to include the requirement of fault. See 38 U.S.C.A. § 1151 (Supp. 1998). However, in a precedent opinion, VA's General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to that date. See VAOPGCPREC 40-97 (Dec. 31, 1997). The 1151 claims at issue in this case were filed before October 1, 1997. Regulations now provide that under the provisions of 38 U.S.C. 1151(a), for claims received by VA before October 1, 1997, compensation will be payable if it is determined that there is an additional disability resulting from a disease or injury or aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, examination, or vocational rehabilitation training. 38 C.F.R. § 3.358 (2006). In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. 38 C.F.R. § 3.358(b)(1). Compensation will not be payable under 38 U.S.C. § 1151 for the continuance or natural progress of disease or injuries for which the hospitalization, medical or surgical treatment, or examination was furnished unless VA's failure to exercise reasonable skill and care in the diagnosis of treatment of the disease or injury caused additional disability or death that probably would have been prevented by proper diagnosis or treatment. 38 C.F.R. § 3.358(b)(2). It is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as a result of VA hospitalization, medical or surgical treatment or examination, and not merely coincidental therewith. 38 C.F.R. § 3.358(c)(1). The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(2). Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). VA's General Counsel has held that under the provisions of 38 U.S.C. § 1151 applicable to claims filed prior to October 1, 1997, benefits may be paid for disability or death attributable to VA's failure to diagnose and/or treat a preexisting condition when VA provides treatment or an examination. A disability or death due to a preexisting condition may be viewed as occurring "as a result of" the VA treatment or examination only if a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death. Generally, entitlement to benefits would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001). In this case, the appellant submitted these claims in July 1996 and they must be considered under the statutory law as it existed prior to October 1, 1997. The revised regulatory provisions of 38 C.F.R. § 3.358 are also applicable. Although the record in this case reveals the RO did not notify the veteran of a recent revision to 38 C.F.R. § 3.358, the Board finds the revision was in no way liberalizing and is not significantly different from the standard considered in the adjudication of the claims. Therefore, the Board finds the veteran is not prejudiced by this decision. See VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (Jul. 24, 1992); VAOPGCPREC 11-97, 62 Fed. Reg. 37953 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384 (1993). Based upon the evidence of record, the Board finds that persuasive medical opinions demonstrate the veteran incurred no right hip nerve damage as the result of surgery in January 1994. Persuasive medical opinions also show that any present loss of use of the legs, weakness of the upper extremities, and low back disability are not the result of nor were they aggravated by VA treatment. There is no competent evidence demonstrating a causal connection between the claimed disabilities and VA treatment. The September 2005 VA medical opinions are unequivocal as to these matters and are shown to have been based upon thorough examinations of the veteran and review of all relevant medical evidence. The Board finds the statements of the veteran and his spouse as to his physical condition subsequent to the January 1994 VA surgery, to the extent that they are inconsistent with the contemporaneous medical evidence, to be of no probative weight. Therefore, entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 is not warranted. The preponderance of the evidence is against the veteran's claims. Increased rating Claims Background Service medical records dated in August 1975 show that the veteran underwent a left knee medial meniscectomy in August 1975. Hospital records dated from January 1976 to July 1976 show he was admitted with complaints of night aching and stiffness in the left knee with locking and popping. A medial meniscectomy was performed in March 1976. Physical examination upon discharge revealed quadriceps muscles at 95 percent of normal with no evidence of effusion. Range of motion was from 0 to 120 degrees. There was slight laxity of the anterior drawer sign suggestive of anterior cruciate laxity, but the remaining ligaments were normal. The diagnoses included moderate left knee traumatic arthritis and retained medial meniscus fragment to the left knee. Hospital records dated in August 1976 show the veteran complained of constant, severe, dull pain and hypesthesia lateral to the wound. He reported his leg popped and locked in terminal extension and reduced with a jerk. He also stated his knee gave out and that he had required a cane for support. On examination of the left knee it was noted that he walked with an antalgic gait and used crutches to relieve pain and for weight bearing. Range of motion was from 5 to 120 degrees. The knee was slightly swollen, McMurray's and jerk tests were negative. The final diagnosis was torn medial meniscus to the left knee, status post-operative medial meniscectomy. On VA examination in January 1977, the veteran complained of left knee pain. The examiner noted a small effusion was present, but that extension was full, flexion was to 120 degrees, and the knee was stable. X-rays reveled no gross joint thinning or bony erosion and no joint effusion was identified. The bony density and architecture appeared normal. The examiner's conclusion was a negative study of the knee. Service connection was established for the residuals of left knee surgery in a May 1977 rating decision. A 10 percent rating was assigned effective from September 14, 1976. The veteran's claim for an increased rating for residuals of left knee surgery was received in July 1996. VA Aid and Attendance examination in November 1996 noted the veteran had a history of multiple back disabilities due to motor vehicle accidents including in 1989 when he broke his neck. It was noted he was unable to stand up, keep his balance, or walk due to severe motor weakness to the lower extremities. VA examination in October 2002 noted the veteran had been confined to a wheelchair since 1994 because of his spinal cord problem and that he did not bear any weight on his legs. He transferred from his bed to his wheelchair using a lift, but reported symptoms related to his left knee and stated he could still perceive pain. He complained of a chronic ache that was increased when his spouse moved his knee while dressing him. His spouse stated that she heard snapping and popping when she flexed and extended the knee while dressing the veteran. She also stated that she had noticed a decrease in free knee motion over the last several years. It was noted the veteran stated that his left knee had been weak with locking, instability, fatigue, and lack of endurance prior to his having developed a spinal cord problem. He reported current symptoms of swelling and stated that erythema and warmth were present at all times. He used pain relief medication which helped somewhat. He described burning discomfort in the scar in the medial aspect of his left knee and complained of recurrent scabbing of the anterior scar. The examiner noted a slightly pale four inch incision scar over the medial aspect of the left knee with two crusted areas to the lower aspect of the scar. The scar was mildly tender to palpation without induration, keloid formation, or drainage. There was a two and a half inch by three quarter inch scar to the medial aspect of the knee with burning discomfort which increased upon touch. There was no drainage, keloid formation, or signs of inflammation about this scar. It was noted that the veteran could not actively move his knee and that on passive flexion and extension he complained of some pain and occasional crepitation. There was pain with patellar compression, but no specific patellofemoral crepitus was detected. There was pain to palpation to the medial and lateral tibial plateaus and along the collateral ligaments. There appeared to be increased laxity and movement on collateral ligament testing as compared to the right associated with pain. Drawer signs were negative, McMurray's testing elicited complaints of pain in the knee with medial and lateral torsion. No definite crepitus or pop was felt. There was no warmth or erythema and no definite effusion could be detected, but there was a prominence of the synovium of both knees. The diagnoses included internal derangement of the left knee with evidence of collateral ligament laxity. VA medical records dated in November 2002 noted the veteran reported he was unable to perform active range of motion studies due to paraplegia. Passive range of motion studies revealed left knee extension to 0 degrees and flexion to 70 degrees. At his personal hearing in October 2003 the veteran testified that his left knee scar was constantly breaking out and getting infected. He stated it was like a black scar over the scar and was broken out more than it had ever been healed over. He described his two left knee scars as approximately six inches by one half to three eighths and four inches by one half inch. He noted that a piece of a suture had worked out of the smaller scar since service. He asserted, in essence, that the larger scar was unsightly and cratered at one end due to repeated infections. He reported that scar was presently healed over and was not draining. He stated he could feel pulling in the scars on range of motion testing. He also reported that he had no movement in his lower extremities and had used a wheelchair for approximately ten years. He stated that he had walked with a limp on the left knee since service before losing the use of his legs. VA neurology examination in September 2005 revealed no voluntary motor function in the lower extremities. There was some episodic firing of his extensor digitorum of the second digit on the left, but this appeared to be a spasm and was not reproducible. There was no left patellar reflex. Light touch sensation was normal to the thighs, but was uniformly diminished in a nondermatomal pattern distal to the patella. The examiner noted the veteran had multiple complaints in his lower extremities. It was further noted that there certainly appeared to be a large component of diabetes mellitus that would explain his nondermatomal diminished sensation, but that loss of use of his lower extremities was difficult to explain as an exact cause. VA joints examination in September 2005 noted the veteran reported generalized pain above the knees and that he had no motor function in the lower extremities. The examiner noted the veteran was very obese and presented in a motorized wheelchair for examination. Motor functions were 0/5 to the hip flexors and extensors, to the knee flexion/extension, and to the ankle flexion/extension. There was some flickering of the extensor digitorum longus of the bilateral toes. Range of motion of the left knee was from 5 to 100 degrees. He was stable to varus and valgus stress. Lachman's and anterior drawer tests were negative. There was joint line tenderness. Motion increased pain, weakness, and fatigue, but no incoordination. Active range of motion and repetitive motion could not be completed. No effusion was palpated and there was no instability or ankylosis. His gait could not be examined because he did not walk and, in essence, that since he could not use his lower extremities there could be no instability due to the service-connected disability. X-rays revealed moderate arthritis. The examiner stated that the veteran's left knee meniscal tear and subsequent surgical treatment had gone to arthritis and was a natural progression of that disease. It was noted that he complained of tenderness to palpation of his left knee incision scar, but it was not believed that the scar limited the function of his knee. The scar was described as superficial and did not impose any functional limitations. The examiner noted that arthritis was limiting the function of his knee. Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2006). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2006). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2006). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2006). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2006). Left Knee Disability 501 0 Arthritis, due to trauma, substantiated by X-ray findings: Rate as arthritis, degenerative. 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2006). 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258, 5259, 5260, 5261 (2006). Normal knee flexion and extension. 38 C.F.R. § 4.71, Plate II (2006). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2006). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 (2006). VA General Counsel precedent opinion has held that a separate rating under Code 5010 for traumatic arthritis was permitted when a veteran who was rated under Code 5257 for other knee impairment (due to lateral instability or recurrent subluxation) also demonstrated additional disability with evidence of traumatic arthritis and a limitation of motion. See VAOPGCPREC 23-97 (Jul. 1, 1997). Separate ratings are also permissible for limitation of flexion and limitation of extension of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Court has held that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). It is noted, however, that a separate rating must be based upon additional disability. When a knee disorder is already rated under Code 5257, the veteran must also have limitation of motion under Code 5260 or Code 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero-percent rating under either of those Codes, there is no additional disability for which a rating may be assigned. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero- percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). Based upon the evidence of record, the Board finds the veteran's service-connected residuals of a left knee injury are presently manifested by symptomatic removal of semilunar cartilage with evidence of arthritis, pain, and passive leg motion from 5 to 100 degrees, including as a result of pain and dysfunction. There is no evidence of any recurrent subluxation nor dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. While an October 2002 VA examination revealed evidence of collateral ligament instability, this findings is inconsistent with the other medical evidence of record. The September 2005 VA examination findings of no instability are considered to be persuasive. The examiner is shown to have conducted a thorough examination of the veteran and review of the claims file. The Board further finds the service- connected disorder is appropriately rated under the criteria for diagnostic code 5259. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Although the evidence shows the veteran has X-ray evidence of arthritis to the left knee joint and left leg flexion that is less than normal but not compensable for VA purposes, a higher or separate rating under the criteria of Diagnostic Code 5003 is not warranted. The veteran is presently receiving a 10 percent rating for symptoms associated with the removal of semilunar cartilage during active service. His service-connected left knee disability evaluation is complicated by overlying symptoms associated with his nonservice-connected paraplegia and neurological disorders. The evidence of record demonstrates, however, that the veteran's primary symptom and left knee impairment for the rating under Diagnostic Code 5259 has been painful motion. While the veteran is shown to meet the alternative schedular criteria for a 10 percent rating under Diagnostic Code 5003, the Board finds that separate ratings Diagnostic Codes 5003 and 5259 would violate the regulatory prohibition against pyramiding ratings. Therefore, entitlement to a rating in excess of 10 percent for the residuals of a left knee injury is not warranted. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder that would take the veteran's case outside the norm so as to warrant an extraschedular rating. The veteran's service-connected knee disability is adequately rated under the available schedular criteria and his more prominent lower extremities impairments are due to nonservice-connected disabilities. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The preponderance of the evidence is against the veteran's claim. Scars Initially, the Board notes that during the course of this appeal VA regulations for the evaluation of skin disabilities were revised effective August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002) and corrections 67 Fed. Reg. 58448-58449 (Sept. 16, 2002). The Rating Schedule criteria applicable to the present claim, however, were essentially unchanged by those revisions. 780 2 Scars, other than head, face, or neck, that are superficial and that do not cause limited motion: Rating Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with Sec. 4.25 of this part. Note (2): A superficial scar is one not associated with underlying soft tissue damage. 780 3 Scars, superficial, unstable 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. 780 4 Scars, superficial, painful on examination 10 Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): In this case, a 10-percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See Sec. 4.68 of this part on the amputation rule.) 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7803, 7804 (effective before and after August 30, 002). Based upon the evidence of record, the Board finds the veteran's service-connected post-operative scars of the left knee are manifested by no more than painful superficial scarring. There is no evidence indicating that his left knee scars involve an area greater than 144 square inches and no probative evidence of any limitation of motion or function due to scarring. Although an October 2002 VA examination noted two crusted areas to the lower aspect of the scar, the examiner noted the scars were without induration, keloid formation, or drainage. The Board finds there is no probative evidence of underlying soft tissue damage or an unstable superficial scar. Therefore, entitlement to a rating in excess of 10 percent for post-operative scars of the left knee is not warranted. There is no evidence of any unusual or exceptional circumstances so as to warrant referral for an extraschedular rating. The preponderance of the evidence is against the veteran's claim. Automobile and/or Adaptive Equipment VA law provides for certification of eligibility for financial assistance in the purchase of one automobile or other conveyance in an amount not exceeding the amount specified in 38 U.S.C. 3902 (including all State, local, and other taxes where such are applicable and included in the purchase price) and of basic entitlement to necessary adaptive equipment when all the following requirements are met. (a) Service. The claimant must have had active military, naval or air service. (b) Disability. (1) One of the following must exist and be the result of injury or disease incurred or aggravated during active military, naval or air service; (i) Loss or permanent loss of use of one or both feet; (ii) Loss or permanent loss of use of one or both hands; (iii) Permanent impairment of vision of both eyes: Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye. (iv) For adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips. (2) Veterans not serving on active duty must be entitled to compensation for the disability. As to any claimant the disability must be service connected in accordance with usual criteria. (c) Claim for conveyance and certification for adaptive equipment. A specific application for financial assistance in purchasing a conveyance is required which must contain a certification by the claimant that the conveyance will be operated only by persons properly licensed. The application will also be considered as an application for the adaptive equipment to insure that the claimant will be able to operate the conveyance in a manner consistent with safety and to satisfy the applicable standards of licensure of the proper licensing authorities. Simultaneously with the certification provided pursuant to the introductory text of this section, a claimant for financial assistance in the purchase of an automobile will be furnished a certificate of eligibility for financial assistance in the purchase of such adaptive equipment as may be appropriate to the claimant's losses unless the need for such equipment is contraindicated by a physical or legal inability to operate the vehicle. There is no time limitation in which to apply. An application by a claimant on active duty will be deemed to have been filed with VA on the date it is shown to have been placed in the hands of military authority for transmittal. 38 C.F.R. § 3.808 (2006). Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, i.e., whether the acts of grasping, manipulation, and the like in the case of the hand or of balance, propulsion, and the like in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2006). In this case, the medical evidence of record does not establish that the veteran has service-connected disabilities manifested by the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, the permanent impairment of vision of both eyes, or ankylosis of the hips or knees. The veteran claims, in essence, that he is unable to walk and has lost the use of his upper and lower extremities due to service-related or VA treatment-related disabilities. While the veteran is shown to be unable to walk due to severe weakness and has previously demonstrated weakness of the upper extremities, he does not have the requisite loss of use of his feet or permanent loss of use of one or both hands as a result of injury or disease incurred or aggravated by his military service as contemplated by law. In the absence of such impairment, the Board finds that the veteran does not meet the criteria for entitlement to financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only. Therefore, the veteran's claim must be denied. ORDER Entitlement to service connection for degenerative joint disease of the right knee secondary to service-connected residuals of a left knee injury is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for right hip nerve damage is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for loss of use of the legs is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for weakness of the upper extremities is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disability is denied. Entitlement to a rating in excess of 10 percent for the residuals of a left knee injury is denied. Entitlement to a rating in excess of 10 percent for post- operative scars of the left knee is denied. Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is denied. REMAND As noted above, there has been a significant recent change in VA law. The veteran was notified of the provisions of the VCAA and how it applied to his service connection claim by correspondence dated in November 2002, April 2004, and March 2005. The Board notes the revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159. For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). In this case, the Board notes that information provided on the veteran's DD Form 214 reporting no foreign or sea service is apparently inconsistent with service medical reports stating that he had been transferred from Thailand and the Philippines. The veteran contends that information concerning his service in Vietnam was "privileged" and he is unwilling to provide any specific details as to when or where he served in Vietnam. In light of the information placing the veteran temporarily in Thailand, the Board finds the veteran's service personnel records should be obtained prior to appellate review. Accordingly, this case is REMANDED for the following: 1. Appropriate efforts should be taken to obtain the veteran's service personnel records and to follow up upon any information contained therein indicating possible service in Vietnam. 2. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs