Citation Nr: 1213490 Decision Date: 04/12/12 Archive Date: 04/26/12 DOCKET NO. 03-13 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to January 5, 2005, for narcolepsy, and to a rating in excess of 50 percent from January 5, 2005, for narcolepsy and obstructive sleep apnea. 2. Entitlement to an rating in excess of 10 percent prior to March 12, 2009, and to a rating in excess of 20 percent from March 12, 2009, for patellofemoral syndrome of the right knee. 3. Entitlement to an rating in excess of 10 percent prior to March 12, 2009, and to a rating in excess of 20 percent from March 12, 2009, for patellofemoral syndrome of the left knee. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased rating above 10 percent for narcolepsy, an increased rating for bilateral patellofemoral syndrome (PFS), each knee rated 10 percent disabling, and an increased rating for narcolepsy, rated 10 percent disabling. In a January 2006 rating decision, the Veteran was granted service connection for sleep apnea as a component of his service-connected narcolepsy, effective January 5, 2005, based on the date his specific claim for VA compensation for sleep apnea was received by VA. On the basis of his award of service connection for sleep apnea, a 50 percent rating was assigned for narcolepsy with sleep apnea, effective January 5, 2005. In February 2007, the Veteran and his representative presented oral testimony in support of his appeal before the undersigned traveling Veterans Law Judge, sitting at the RO. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. During the course of the appeal, in June 2007, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. Thereafter, by rating decision dated in August 2009, an increased rating, to 20 percent, was assigned to the Veteran's PFS of each knee, effective March 12, 2009. The case was thereafter returned to the Board for appellate adjudication. In August 2010, the Board again remanded the case to the AMC for further evidentiary development. Following this development, the 10 percent rating prior to January 5, 2005, for narcolepsy, and the 50 percent from January 5, 2005, for narcolepsy and obstructive sleep apnea, were confirmed in a January 2012 rating decision/supplemental statement of the case. The same rating action also confirmed the 10 percent ratings assigned to each knee for PFS prior to March 12, 2009, and the 20 percent ratings thereafter assigned to each knee for PFS from March 12, 2009. The case was returned to the Board in March 2012 and the Veteran now continues his appeal. (The Board notes that in correspondence dated in late January 2012, the AMC informed the Veteran's representative that the most recent remand action was completed and offered the representative the opportunity to respond with a VA Form 1-646 via electronic facsimile within eight days of dispatch of the letter. No timely response was received from the representative and the case was returned to the Board. Subsequently, in e-mail correspondence dated in April 2012, the RO informed the Board that it had contacted the Veteran's representative regarding its non-response to the January 2012 AMC letter. The RO confirmed that the representative expressly declined to complete a VA Form 1-646 on this appeal and, in essence, gave its consent to the Board to proceed with its adjudication of the claim.) At this juncture, the Board notes that in addition to sleep apnea with narcolepsy and the bilateral knee disability currently at issue, the Veteran is presently service connected for right elbow tendonitis (rated 10 percent disabling), fracture residuals of the T12 vertebra with history of low back pain (rated 10 percent disabling), degenerative disc disease (DDD) of the cervical spine (rated 10 percent disabling), sinusitis with headaches (rated 10 percent disabling), incomplete paralysis of the left lower extremity (rated 10 percent disabling), and kidney stones (rated noncompensably disabling). His current combined disability rating is 80 percent, pursuant to 38 C.F.R. § 4.25 (2011), and he is in receipt of a total disability rating for individual unemployability due to his service-connected disabilities (TDIU) since June 15, 2006. FINDINGS OF FACT 1. Prior to January 5, 2005, service connection was in effect only for narcolepsy, which was manifested by frequent daily occurrences of sudden onset of brief sleep episodes with cataplexy, but without actual clinical seizure disorder episodes, for which the Veteran was prescribed central nervous system stimulant medication (Modafinil) to reduce these symptoms. 2. From January 5, 2005, service connection has been effect for narcolepsy and obstructive sleep apnea. Narcolepsy is manifested by frequent daily occurrences of sudden onset of brief sleep episodes with cataplexy, but without actual clinical seizure disorder episodes, for which the Veteran was prescribed central nervous system stimulant medication (Modafinil) to reduce these symptoms; obstructive sleep apnea requires the nightly use of a breathing assistance device during sleep. 3. Prior to March 12, 2009, PFS of the right knee was manifested by no more than slight impairment due to subjective complaints of right knee pain with pain on use, instability, and crepitus, and fatigue with repetitive use, but with no compensable limitation of motion even during flare-up or repetitive use. 4. From March 12, 2009, PFS of the right knee is manifested by no more than moderate impairment due to subjective complaints of right knee pain with pain on use, instability, and crepitus, and fatigue with repetitive use, but with no compensable limitation of motion even during flare-up or repetitive use. 5. Prior to March 12, 2009, PFS of the left knee was manifested by no more than slight impairment due to subjective complaints of left knee pain with pain on use, instability, and crepitus, and fatigue with repetitive use, but with no compensable limitation of motion even during flare-up or repetitive use. 6. From March 12, 2009, PFS of the left knee is manifested by no more than moderate impairment due to subjective complaints of left knee pain with pain on use, instability, and crepitus, and fatigue with repetitive use, but with no compensable limitation of motion even during flare-up or repetitive use. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to January 5, 2005, for narcolepsy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8108-8911 (2011). 2. The criteria for a rating in excess of 50 percent from January 5, 2005, for narcolepsy and obstructive sleep apnea have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.97, 4.124a, Diagnostic Codes 6847, 8108-8911 (2011). 3. The criteria for a rating in excess of 10 percent prior to March 12, 2009, for PFS of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2011). 4. The criteria for a rating in excess of 20 percent from March 12, 2009, for PFS of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2011). 5. The criteria for a rating in excess of 10 percent prior to March 12, 2009, for PFS of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2011). 6. The criteria for a rating in excess of 20 percent from March 12, 2009, for PFS of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS (a.) The Veterans Claims Assistance Act of 2000 (VCAA) and VA's Duties to Notify and Assist With respect to the increased rating claims on appeal, the Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The increased rating claims at issue were filed on February 16, 2001. A VCAA notice letter was dispatched to the Veteran in January 2002, prior to the July 2002 rating decision now on appeal, with subsequent notice letters dispatched during the course of the appeal in January 2006 and November 2007. These letters address the increased rating issues on appeal and, collectively, satisfy the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that a timing of notice error exists in that fully compliant notice did not precede the initial adjudication of the Veteran's claims, the later notices were followed by a subsequent readjudication, most recently in a January 2012 rating decision, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. As the rating issues on appeal stem from February 16, 2001, when the Veteran filed his claim for increased ratings for his chronic sleep disorder and bilateral knee disabilities, the relevant time period and evidence that must be addressed in the adjudication of the claim encompasses the period from February 16, 2000 to the present, in order to allow the Board to consider the applicability of a staged rating. See 38 C.F.R. § 3.400(o)(2) (2011); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this regard, the Board observes that private and VA clinical records that pertain to the Veteran's examinations and treatments for his chronic sleep disorder and bilateral knee disabilities for the period spanning 2000 to 2010 have been obtained and associated with the claims file. The Board further notes that it remanded the case for additional evidentiary development in June 2007 and August 2010, to include obtaining the Veteran's sleep diary (which he reported keeping in correspondence dated in April 2006), as well as all current relevant medical records (including his VA vocational rehabilitation folder) and providing him with current examinations of his sleep disorder and orthopedic disabilities. In this regard, all evidence sought on remand was obtained except for the Veteran's sleep diary. The claims file shows that VA requested the Veteran provide a copy of his reported sleep diary in correspondence dated in September 2010, but thereafter no timely response was received by either the Veteran or his representative before the appeal was re-certified to the Board over 17 months later, in February 2012. Having undertaken efforts in good faith to obtain this pertinent record, VA was thwarted solely by the Veteran's evident non-cooperation. In the case of Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the United States Court of Appeals for Veterans Claims (Court) has stated that VA's duty to assist is not always a one-way street and that if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Therefore, the Board concludes that VA has reasonably discharged its duty to assist the Veteran in this regard, and that no further remand for corrective development is required. With regard to the two VA medical examinations conducted to assess the severity of his bilateral knee disabilities and sleep disorder per the August 2010 Board remand, these were duly provided, respectively, in September 2010 and November 2010, in substantial compliance with the Board's remand instructions, and therefore no further remand is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has reviewed the aforementioned examination reports and notes that the Veteran's claims file was reviewed by the clinicians who performed the September 2010 and November 2010 examinations. The examiners who conducted these evaluations provided adequate discussion of their clinical observations and a rationale to support their individual findings and conclusions within the context of the Veteran's clinical history as contained within his claims file. As September 2010 and November 2010 examinations of record incorporate the clinical findings of the prior VA examinations conducted during the course of this claim, extending all the way back to 2000, the two latest examinations thereby render all prior examinations adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with a hearing before the Board in February 2007. In correspondence dated in September 2009, the Veteran affirmed that he had no further evidence to submit in support of his claims. The Veteran having been provided with adequate opportunity to submit or otherwise identify relevant evidence in support of his claims, the Board finds that the record does not need to be held open any longer, and that no further delay in the adjudication of this appeal is warranted. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his claims for increased ratings for his sleep disorder and bilateral knee disabilities decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2011). Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2 (2011); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2011); and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2011). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that where the appellant has expressed dissatisfaction with the assignment of a rating, separate ratings can be assigned for separate periods of time based on the facts found, commencing on the date on which the appellant reopened his claim for a rating increase. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2011). (b.) Entitlement to a rating in excess of 10 percent prior to January 5, 2005, for narcolepsy, and to a rating in excess of 50 percent from January 5, 2005, for narcolepsy and obstructive sleep apnea. Prior to January 5, 2005, the Veteran's service-connected sleep disorder was rated solely as narcolepsy under the criteria contained in 38 C.F.R. § 4.124a, Diagnostic Code 8108-8911. (As previously noted, by rating decision dated in January 2006, the Veteran was granted service connection for sleep apnea as a component of his service-connected narcolepsy, effective January 5, 2005, based on the date that his specific claim for VA compensation for sleep apnea was received by VA. On the basis of this award, VA was able to apply the criteria for rating sleep apnea in 38 C.F.R. § 4.97, Diagnostic Code 6847. However, as the file does not indicate that the Veteran is specifically appealing the effective date assigned for the award of service connection for sleep apnea, the Board cannot consider rating the Veteran's chronic sleep disorder under the criteria for sleep apnea at any time prior to January 5, 2005.) 38 C.F.R. § 4.124a, Diagnostic Code 8108-8911, provides that narcolepsy is to be rated using the criteria for petit mal epilepsy. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). The rating schedule assigns a 10 percent evaluation for a confirmed diagnosis of epilepsy with a history of seizures. Assignment of a 20 percent evaluation is warranted when there is at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. Assignment of a 40 percent evaluation is warranted when there is at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. Assignment of a 60 percent evaluation is warranted when there is at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. Assignment of an 80 percent evaluation is warranted when there is at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. Assignment of a 100 percent evaluation is warranted when there is at least 1 major seizure per month over the last year. [NOTE (1): When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. NOTE (2): In the presence of major and minor seizures, rate the predominating type. NOTE (3): There will be no distinction between diurnal and nocturnal major seizures.] 38 C.F.R. § 4.124a, Diagnostic Code 8108-8911 (2011). The Board has reviewed the entirety of the clinical and testimonial evidence for the period prior to January 5, 2005, which demonstrates that the Veteran experienced daily episodes of narcolepsy, in which he would go immediately into a brief sleeping state while otherwise mentally engaged in conversation or tasks. Cataplexy was sometimes manifested, in which the Veteran would lose muscle control during moments of heightened or extreme emotion. Because of this, the Veteran did not operate a motor vehicle and instead relied on public transportation or others to drive him to where he needed to go. The Veteran was prescribed the drug Modafinil - a central nervous system stimulant medication - to reduce the severity of these symptoms, but the symptoms continued to persist throughout the period at issue. However frequent these narcoleptic and cataplexic episodes were, VA-authorized sleep studies and neurological examinations that were regularly conducted during the period from February 2000 - January 2005 reflect that the Veteran did not actually experience true epileptiform seizures or myoclonic attacks that met or more closely approximated the clinical definition of seizures as contemplated by the rating criteria. 38 C.F.R. § 4.7 (2011). As such, while the Board acknowledges the disabling disruptive aspects of the Veteran's daily narcoleptic episodes, the objective medical evidence fails to demonstrate that these meet the criteria for more than a 10 percent evaluation for petit mal epilepsy requiring continuous use of neurological medication. Thusly, the claim for a rating increase above 10 percent for narcolepsy prior to January 5, 2005, must be denied. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of January 5, 2005, sleep apnea was diagnostically incorporated into the Veteran's service-connected chronic sleep disorder, and a 50 percent evaluation on the basis of impairment due to sleep apnea was awarded. Obstructive, central, or mixed sleep apnea is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847, which provides for the assignment of a 50 percent evaluation when it requires the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. The next higher evaluation of 100 percent is contemplated by the rating schedule only when there is clinical evidence of sleep apnea manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy to facilitate breathing. The clinical and testimonial evidence pertinent to the period from January 5, 2005, onwards, establishes that the Veteran is using a breathing assistance device while sleeping at night. By history, he has been using one for several years prior to January 5, 2005, and was initially prescribed a CPAP machine before being switched to bilevel positive airway pressure (BiPAP) machine to better aid his nocturnal breathing during rest. The clinical evidence demonstrates that he continued to experience daily episodes of narcolepsy and sometimes cataplexy, and continued to use Modafinil. However, all clinical outpatient reports and pulmonary examination reports demonstrate that the Veteran does not have, nor has he ever had during the pendency of this claim, chronic respiratory failure with carbon dioxide retention or cor pulmonale. His clinical history also demonstrates that he did not ever require a tracheostomy to facilitate his breathing. As such, his sleep apnea does not meet the criteria for an evaluation above 50 percent at any time during the pendency of this claim. His appeal in this regard must therefore be denied. (c.) Entitlement to ratings in excess of 10 percent prior to March 12, 2009, and to a rating in excess of 20 percent from March 12, 2009, for patellofemoral syndrome of the right and left knee. A thorough evaluation of a musculoskeletal or orthopedic disability for rating purposes requires consideration of any functional loss due to pain, incoordination, weakness, or fatigability. 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The applicable rating criteria for evaluating the Veteran's bilateral knee disabilities are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5260, 5261, and 5262. These provide the following: 5010 Arthritis, due to trauma, substantiated by X-ray findings: Rate as arthritis, degenerative 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2011). 5003 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 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 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 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent 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 (2011) 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2011) 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2011) 5260 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 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2011) 5261 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 Code 5261 (2011) 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2011) A knee disability may be rated under both the Diagnostic Code for arthritis and the Diagnostic Code for joint instability. The VA Office of the General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 of 38 C.F.R. § 4.71a. The Office of the General Counsel noted that Diagnostic Code 5257 specifically addressed only instability of the knee and Diagnostic Code 5003 specifically addressed only arthritis and disability from arthritis due to limitation of range of motion. The Office of the General Counsel determined that because these Diagnostic Codes applied either to different disabilities or to different manifestations of the same disability, the evaluation of knee dysfunction under both Codes would not amount to pyramiding (i.e., evaluating the same disability under various diagnoses) which was to be avoided under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997). To give the Veteran every consideration in connection with the matter on appeal, the Board must consider all potentially applicable Diagnostic Codes under § 4.71a in rating the Veteran's disability. See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case"), and Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (one Diagnostic Code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology). As relevant, the clinical and testimonial evidence pertinent to the period from February 2000 to March 11, 2009, shows that X-rays of each of the Veteran's knees were essentially normal and revealed no bony pathology, although some X-ray images reflected soft tissue degeneration and joint space narrowing associated with chondromalacia patella. Range of motion testing conducted during this time period reflects that on all tests the Veteran was able to fully extend both knees to zero degrees, even with pain or fatigue after repetitive extension. Flexion of each knee varied, but the records do not reflect that the Veteran was unable to flex either knee less than 120 degrees, even with limitation due to pain or fatigue after repetitive flexion. The Veteran's constellation of symptomatology for each knee during this period was manifested by subjective complaints of constant knee pain, aggravated by cold and damp weather, and pain on use or prolonged standing and walking, which were accompanied by crepitus and recurring sensations of instability and episodes when the knee reportedly gave way, with the right knee reportedly worse than the left. The Veteran used a cane to support himself when walking, but limited his treatment to heat applications and non-narcotic anti-inflammatory and pain medications because his use of narcotic medications was proscribed by his narcolepsy. The examination and treatment reports objectively demonstrate the presence of crepitus on clinical observation, although the knee joints were stable on varus and valgus stress testing and the presence of actual joint instability was not objectively established. Significantly, the Veteran reported that he used a stationary exercise bicycle daily and rode an average odometer distance of up to 15 miles per day, and up to 60 miles per week. As of the date of a VA examination conducted on March 12, 2009, the clinical evidence reflects similar findings as described above. However, of significance is that the Veteran reported having much less physical stamina and more joint fatigue in each knee, and he was no longer able to use his exercise bicycle and was reduced to walking on a treadmill for not more than 3 miles per day at best. The examining clinician characterized the effects of the Veteran's bilateral knee strain on his ability to perform his usual daily activities as being moderately disabling on its impact on his capacity to shop, exercise, bathe, feed, dress, groom, and attend to his needs of nature. The bilateral knee disability was also deemed to impose severe impairment on his ability to engage in recreational activities and household chores, and prevent him from traveling. The Veteran was noted to not drive an automobile, but this was associated with his narcolepsy. Applying the pertinent criteria to the aforementioned facts, the Board finds that even with consideration of 38 C.F.R. §§ 4.40, 4.45, and the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), the clinical evidence does not demonstrate the radiographic presence of arthritic changes in either knee, or the requisite degree of limitation of motion on flexion or extension to warrant the assignment of even a minimum 10 percent rating on the basis of pain on motion due to degenerative joint disease under Diagnostic Codes 5003, 5260, and 5261. At worst, the clinical evidence demonstrates that the Veteran's right and left knee are each no more than slightly disabled due to crepitation and perceived joint instability with pain and fatigue prior to March 12, 2009, as indicated by his capacity to ride his exercise bicycle daily for odometer distances of up to 15 miles per day, and up to 60 miles per week. However, as of March 12, 2009, the clinical evidence indicates a worsening of each knee, with much reduced capacity for exercise. While the Veteran continued to have noncompensable limitation of motion for either knee, he Veteran no longer had the same exercise endurance as he previously enjoyed, being only able to walk up to 3 miles per day on an exercise treadmill. The VA examiner who evaluated the Veteran on March 12, 2009, determined that he was moderately disabled on almost all his usual daily activities. As such, the Board concludes that the assignment of the 20 percent evaluation for each knee, effective March 12, 2009, adequately reflects the Veteran's moderate functional impairment due to crepitation and perceived joint instability. Assignment of a 30 percent evaluation is not warranted, however, as the constellation of orthopedic symptomatology for either knee does not more closely approximate the criteria for severe impairment. In this regard, the Veteran still has a limited capacity for daily exercise and the evidence does not objectively demonstrate actual joint instability on varus or valgus testing for either knee, even as recently as the VA examination of September 2010. In conclusion, the Board finds that the Veteran's left and right knee disabilities have each not met the criteria for a rating greater than 10 percent for the period prior to March 12, 2009, nor have they each met the criteria for a rating greater than 20 percent for the period from March 12, 2009. The appeal in this regard is thus denied. Because the evidence in this case is not approximately balanced with respect to the merits of these claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (d.) Extraschedular consideration The Board finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected sleep disorder and bilateral knee disabilities, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The clinical evidence establishes that the Veteran's service-connected sleep disorder and bilateral knee disabilities do not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. §§ 4.71a, 4.97, and 4.124a. Although the clinical evidence indicates that the Veteran experiences daily disruption of his activities due to attacks of narcolepsy and decreased mobility and capacity for physical activity due to his bilateral knee disabilities, these in themselves, do not individually render the applicable rating schedules inadequate to rate the sleep and orthopedic disabilities at issue. Furthermore, the clinical evidence does not indicate that the chronic sleep disorder and the bilateral knee disabilities require treatment through frequent hospitalizations. With respect to the impact of the Veteran's sleep disorder and bilateral knee disabilities on his employability, while it is conceded that his multiple service-connected disabilities (i.e., sleep apnea with narcolepsy, bilateral PFS of the knee, right elbow tendonitis, fracture residuals of the T12 vertebra with history of low back pain, DDD of the cervical spine, sinusitis with headaches, incomplete paralysis of the left lower extremity, and kidney stones), as a combined whole, render him individually unemployable, and thus formed the basis for his current TDIU award, the evidence demonstrates that the level of industrial impairment individually attributable solely to the service-connected sleep disorder and to each knee disability is adequately contemplated in the criteria of the applicable rating schedule. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2011). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993). (CONTINUED ON NEXT PAGE) ORDER An increased rating in excess of 10 percent prior to January 5, 2005, for narcolepsy is denied. An increased rating in excess of 50 percent from January 5, 2005, for narcolepsy and obstructive sleep apnea is denied. An increased rating in excess of 10 percent prior to March 12, 2009, and an increased rating in excess of 20 percent from March 12, 2009, for patellofemoral syndrome of the right knee is denied. An increased rating in excess of 10 percent prior to March 12, 2009, and an increased rating in excess of 20 percent from March 12, 2009, for patellofemoral syndrome of the left knee is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs