Citation Nr: 1552453 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 08-33 789A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for a neurological disorder, claimed as muscle weakness and numbness in the bilateral upper extremities. 3. Entitlement to service connection for sexual dysfunction, including as secondary to a service-connected right inguinal hernia. 4. Entitlement to service connection for a left hip disability. 5. Entitlement to service connection for post traumatic stress disorder (PTSD). 6. Entitlement to service connection for a disorder of the larynx, including a disability manifested by hoarseness. 7. Entitlement to service connection for a chronic gastrointestinal disorder, including as a result of undiagnosed illness. 8. Entitlement to service connection for a disability manifested by depression and anxiety, including as a result of undiagnosed illness. 9. Entitlement to service connection for chronic fatigue, including as a result of undiagnosed illness. 10. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.29 for throat surgery. 11. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 12. Entitlement to a rating in excess of 10 percent for the postoperative residuals of left knee trauma, including instability. 13. Entitlement to a total disability rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1971 to November 1972, from January 1991 to April 1992, from May 1996 to August 1996, and from September 1996 to September 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In a March 2009 decision, the Board denied service connection for a disability manifested by muscle weakness and numbness of the upper extremities; denied a rating in excess of 10 percent for degenerative joint disease of the left knee; and granted a separate 10 percent rating for instability of the left knee. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and a portion of the Board's decision was vacated pursuant to a November 2009 Order, following a Joint Motion for Remand (JMR). The parties agreed that the Board should insure that a proper examination regarding the etiology of the Veteran's muscle weakness complaints be conducted and that an additional examination of the Veteran's left knee should be performed. In June 2010, the Board remanded the case so that the Veteran could be afforded the opportunity to testify at a hearing on appeal. In July 2010, the Veteran indicated that he was withdrawing his request for a travel Board hearing. In two September 2013 decisions, the Board remanded the issues of entitlement to service connection for a neurologic disorder, claimed as muscle weakness and numbness of both upper extremities; for sexual dysfunction including as secondary to a right inguinal hernia; a left hip disability; PTSD; a disorder of the larynx manifested by hoarseness; a chronic gastrointestinal disorder; a disability manifested by depression and insomnia; chronic fatigue; entitlement to a temporary total rating under 38 C.F.R. § 4..29; and entitlement to TDIU. The September 2013 Board decisions also denied service connection for hepatitis C and ratings in excess of 10 percent for degenerative joint disease of the left knee and instability of the left knee. The case was returned to the Court who, in a December 2014 memorandum decision, vacated and remanded those portions of the September Board decisions that denied service connection for hepatitis C and increased ratings for the Veteran's left knee disabilities. In response to the December 2014 Court decision, the Board remanded the issues regarding service connection for hepatitis C and left knee disability ratings for additional development. The issues of service connection for a neurologic disorder, claimed as muscle weakness and numbness of both upper extremities; for sexual dysfunction including as secondary to a right inguinal hernia; a left hip disability; PTSD; a disorder of the larynx manifested by hoarseness; a chronic gastrointestinal disorder; a disability manifested by depression and insomnia; chronic fatigue; entitlement to a temporary total rating under 38 C.F.R. § 4..29; and entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hepatitis C was first manifested during the Veteran's period of active duty from September 1996 to September 1999. 2. Hepatitis C was found by the service department to be incurred in the line of duty and not the result of the Veteran's willful misconduct. 3. Throughout the appeal, the degenerative joint disease of the left knee has been manifested by pain, full extension and limitation of flexion to, at worse, 70 degrees to, at best, 110 degrees. 4. Beginning on December 21, 2012, the Veteran's left knee has demonstrated functional loss in the form of in the form of disuse atrophy; disturbance of locomotion; interference with sitting, standing, and weight bearing; and pain with standing. 5. Throughout the appeal, the Veteran has had additional left knee disability manifested by intermittent instability, crepitus, grinding and the need for a cane. CONCLUSIONS OF LAW 1. Hepatitis C was incurred in service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.1, 3.301, 3.303 (2015). 2. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met prior to December 21, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5260 (2015). 3. The criteria for a 20 percent rating for degenerative joint disease of the left knee have been met effective December 21, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5260 (2015). 4. The criteria for a rating in excess of 10 percent for other impairment of the left knee have not been met for any period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Code 5257 (2015). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims. December 2005, August 2006, and November 2012 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. A March 2006 letter informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently in July 2015. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran and his representative have challenged the conclusions of a VA examiner, neither have challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2015). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the appellant's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in the line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 C.F.R. § 3.1(m). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Hepatitis C The Veteran and his representative contend that service connection is warranted for hepatitis C. During a formal hearing at the RO in September 2009, the Veteran testified that he believed that he incurred his hepatitis C as a result of exposure to blood of other Veterans with whom he came in contact while stationed in Bosnia and Germany. His representative has strongly objected to the findings of the VA examiner who stated that the hepatitis C was more likely the result of the Veteran's cocaine use. In this regard it is asserted that, while the Veteran has admitted to cocaine use, there is no evidence of intervenous drug use or that he ever shared drug paraphernalia, which is a known risk factor for hepatitis C. Review of the Veteran's STRs shows no indication of hepatitis C during the Veteran's first three periods of active duty. STRs from the Veteran's last period of service show that laboratory testing was positive for hepatitis antibodies in December 1997. He was referred for further evaluation. Additional STRs from the Veteran's second period of service show treatment for hepatitis C. In an April 1999 Physical Evaluation Board (PEB) proceeding, the service department found that the Veteran's hepatitis C was incurred during military service and had not existed prior to service. In a May 1999 final PEB report, it was noted that the Veteran's hepatitis C was not the result of intentional misconduct, willful neglect or unauthorized absence, was incurred while he was entitled to basic pay, was in the line of duty, and was the proximate result of performing active duty. Following the PEB, the Veteran was placed on the temporary disability retirement list and was eventually released from service. There was no indication in the STRs that the hepatitis C was the result of the Veteran's willful misconduct. An examination was conducted by VA in August 1994. At that time, the examiner related that the Veteran had had problems with alcohol and cocaine abuse in the past, but had stopped using these substances in January 1994. Laboratory studies were normal. In a September 2004 memorandum, an service physician indicated that the Veteran had a diagnosis of hepatitis C and that had had mild alcohol abuse in the past. An examination was conducted by VA September 2007. At that time, the examiner reported that the Veteran had a long history of tobacco, alcohol, and cocaine abuse. Regarding hepatitis C, it was noted that the Veteran was first diagnosed in military service in 1997 and that hepatitis C antibodies were reactive. His urine was currently positive for cocaine. He reported that he had been involved in a motor vehicle accident in 1981 when he might have had a blood transfusion, but the examiner noted that there was no evidence of a blood transfusion at that time. The examiner stated that the Veteran had not had exposure to blood on his body in the past. The examiner rendered an opinion that, as there was no evidence of the Veteran having had a blood transfusion in 1981, it was not at least as likely that the Veteran's hepatitis was related to a service accident. Rather, the hepatitis C was more likely related to substance abuse. An examination was conducted by VA in July 2015. At that time, an opinion was requested regarding the nature and etiology of the Veteran's hepatitis C. After in-person examination and review of the Veteran's clinical records, the examiner stated that the hepatitis C was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was noted to be based on current medical literature and review of the Veteran's medical records. The examiner discussed the Veteran's statement that he might have received a blood transfusion in 1981 following a motor vehicle accident, but that there was no documentation to support this statement. There was also no transfusion given following treatment for a fractured hip in 1991, but there was documentation during the examination of the absence of a consistent sexual partner and that sexual contact was inconsistent, which continued to be regarded as a risk factor for hepatitis C. The Veteran had denied tattoos and hemodialysis as well as exposure to blood on a body part. It was then noted that contamination by blood with resulting infection must be through broken skin or mucosa from another infected individual. Intravenous drug use was considered to be the primary route of transmission of hepatitis C and tranasal or intramucosal use of cocaine was also a recognized source of infection by this virus. The examiner noted that there was no mention of contamination with blood mentioned during the Veteran's Gulf War examination in 2012 and more than one examination report had documented the Veteran's polysubstance abuse. It was, therefore, considered more likely than not that the Veteran's infection with hepatitis C was the result of the use of cocaine. As previously stated, applicable law provides that service connection will be granted if it is shown that a particular disease or injury resulting in a disorder was incurred in or aggravated in the line of duty. According to 38 C.F.R. § 3.1(m), "in line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service, unless such injury or disease was the result of the veteran's own misconduct or, for claims filed after October 31, 1990, was the result of his (or her) abuse of alcohol or drugs. A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 U.S.C.A.§ 105(a); 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993) (Coast Guard determination that the Veteran's eye disease was incurred in the line of duty was binding on the VA pursuant to regulation). Here, the evidence of record does not establish that the May 1999 PEB findings regarding the in-service incurrence of the Veteran's hepatitis C "are patently inconsistent with the requirements of laws administered by VA." Id. The PEB findings were based on physical examinations and testing as well as a review of his clinical records, and are thus adequate and sufficient examinations and medical opinions. While there are two VA negative medical nexus opinions of record regarding the likely etiology of his hepatitis C, both opinions indicate that the Veteran gave no history of blood exposure, which is in direct contradiction to the Veteran's hearing testimony in 2009. Moreover, the 2015 negative nexus opinion acknowledges that the Veteran's sexual history could have been a risk factor for hepatitis C. In addition, there is no evidence in the record of intravenous drug use or the sharing of paraphernalia for drug use. As such, there is some indication that the injury was not the result from the Veteran's own willful misconduct or his abuse of alcohol or drugs. Therefore, the Board does not find the service department's determination that the hepatitis C was incurred in the line of duty to be in error. As the evidence is at least in equipoise, and resolving all doubt in the Veteran's favor, entitlement to service connection for hepatitis C is granted. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-53 (1990). Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2015). The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Veteran and his representative contend that the Veteran's left knee disabilities are more disabling than currently evaluated. It is specifically argued that the Veteran's need to utilize a cane to aid in ambulation should be sufficient for an increase on an extraschedular basis. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. An examination was conducted by VA in August 2008. At that time, it was noted that the Veteran utilized a cane in his right hand to assist with walking. There were no constitutional symptoms of arthritis or incapacitating episodes of arthritis. The Veteran stated that he was able to stand for up to one hour, but was unable to walk more than a few yards. Reported left knee symptoms included giving way, instability, pain, stiffness, and weakness, but no episodes of dislocation or subluxation. He did describe locking episodes several times per week. On examination, active range of motion of the left knee was from 0 degrees extension to 70 degrees flexion. Passive range of motion was from 0 degrees extension to 79 degrees flexion. There are no additional limitations from repetitive use. Crepitus, grinding, and painful motion were noted, but there was no instability or patellar abnormality. X-ray studies showed the joint spaces to be well-maintained, with small patellofemoral osteophyte formation. The diagnosis was degenerative joint disease of the left knee. In a March 2006 VA examination report, it was noted that the Veteran stated that he suffered from pain, weakness, stiffness, swelling, instability, giving way, locking, fatigability, and lack of endurance. He reported having flare-ups of his left knee disability twice per month if he walked more than 50 feet. He utilized a cane for his knee and foot for balance as an ambulatory aid. There was knee pain, but no ankylosis of the knee joint. Range of motion was from 0 degrees extension to 128 degrees flexion. Ligament examination was normal. Examination showed pain, but no evidence of fatigue, weakness, lack of endurance, or incoordination. There was painful motion and tenderness noted, but no edema, effusion, instability, weakness, redness, heat, abnormal movement or guarding of movement. Gait was reported as normal, without functional limitations on standing or walking. The diagnosis was degenerative joint disease of the left knee, status post arthroscopic surgeries. The examiner commented that the Veteran appeared to be mildly affected by his condition. An examination was conducted by VA in December 2010. At that time, the Veteran reported using NSAID medications for his left knee disability, with fair improvement. He reported symptoms of giving way, pain, stiffness, weakness, swelling, and tenderness. He said that he was able to stand for 15 to 30 minutes, but could not walk more than a few yards. He utilized a cane. Examination showed crepitation. Range of motion was from 0 degrees extension to 105 degrees flexion. There was no additional limitation or objective evidence of pain after repetitive range of motion. There was no joint ankylosis. X-ray studies showed the joint spaces to be within normal limits. The diagnosis was chronic knee strain. An examination was conducted by VA on December 21, 2012. At that time, the diagnoses were left lateral patellar dislocation, chondromalacia of the left patella, left lateral meniscus tear, and deep tissue bruise of the left knee. The Veteran reported flare-ups if he walked too much. Range of motion was from 0 degrees extension to 100 degrees flexion, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The Veteran was noted to have functional loss in the form of disuse atrophy; disturbance of locomotion; interference with sitting, standing, and weight bearing; and pain with standing. The examiner was unable to reproduce pain on palpation and there was no tenderness or pain to palpation of the joint line or soft tissues of the knee. There was no lateral, posterior or medial-lateral instability noted on examination. There was no patellar subluxation or dislocation. The Veteran had had a previous meniscal tear and meniscectomy of the left knee. The examiner did note left thigh atrophy. The Veteran did use a cane to aid in ambulation due to knee and hip pain. The examiner stated that imaging studies did not document the presence of arthritis. He did report pain with weight bearing with limited range of motion and that he could not bend, squat or kneel. An examination was conducted by VA in July 2015. At that time, an opinion was requested as to whether the Veteran required the use of a cane as aid for his left knee disability as opposed to his hip or foot disability. At that time the examiner stated that the use of a cane was appropriate and would be expected to help alleviate the symptoms of the condition. The use of the cane was independent of any hip or foot disability. At different times during the appeal period, the Veteran's left knee disability has been shown to be primarily manifested by limitation of flexion from approximately 70 degrees to 105 degrees, crepitus, pain, and grinding. More recently, left thigh atrophy was noted. The Veteran currently carries separate 10 percent ratings for limitation of motion as the result of arthritis (although arthritis has not been uniformly noted throughout the appeal) and for instability, grinding, and crepitus. After complete review of the examination reports, the Board can find no basis for ratings in excess of 10 percent for either limitation of motion or for other impairment of the left knee. Regarding the limitation of motion, it is noted that there is no limitation of extension and that any limitation of flexion is in excess of that required for a compensable evaluation. As such, a schedular rating in excess of 10 percent is not shown to be warranted. Regarding other impairment of the Veteran's left knee, the Veteran manifests grinding, crepitus, intermittent instability and the consistent need for the use of a cane for ambulation. These symptoms are not shown to be productive of more than slight other impairment of the knee joint. As such, a rating in excess of 10 percent is not shown to be warranted at any time during the appeal. When evaluating musculoskeletal disabilities, VA must also consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and 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. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). In the present case, the Board finds that additional compensation based on functional loss of use is warranted as of December 21, 2012, the date of his examination. The examiner noted additional functional loss in the form of disuse atrophy; disturbance of locomotion; interference with sitting, standing, and weight bearing; and pain with standing. Accordingly, the Board finds that an increase in the Veteran's evaluation of limitation of flexion to 20 percent is appropriate to compensate for additional functional loss. For these reasons, the Board finds that a 20 percent evaluation for limitation of flexion of the left knee based on functional loss is warranted as of December 21, 2012, but that no increase in the evaluation for instability is warranted. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's left knee limitation of flexion, rated as arthritis, directly corresponds to the schedular criteria for the 10 percent evaluation for limitation of knee flexion (Code 5262), which also incorporates various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The slight left knee impairment caused by crepitus, intermittent instability, and grinding (Code 5257) that was noted on the examination reports is specifically contemplated in the schedular rating criteria, and is the basis for a separate schedular rating that recognized functional impairment distinct from the service-connected arthritis with limitation of motion. The Veteran's need to use a cane for ambulation is found by the Board to be contemplated in the slight impairment considered as part of the other impairment of the knee. For these reasons, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's left knee disabilities, and no referral for an extraschedular rating is required. Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Service connection for hepatitis C is granted. An increased rating of 20 percent for degenerative joint disease of the left knee is granted effective December 21, 2012. A rating in excess of 10 percent for the postoperative residuals of left knee trauma, including instability, is denied. REMAND Regarding the remaining issues on appeal, it is noted that these issues were previously remanded by the Board in separate September 2013 decisions. The Board ordered that the Veteran be contacted and requested to furnish as complete a list of prior health care providers as possible, that additional VCAA notice be provided and that the issues be re-adjudicated on a de novo basis, rather than based on the requirement of the need for new and material evidence. The request for a list of health care providers was sent to the Veteran in December 2014 and he responded that he had received all of his treatment through VA. The claims were not; however, readjudicated prior to the return to the Board in 2015 (when the issues of service connection for hepatitis C and increased ratings for left knee disabilities were remanded) and have remained on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the claims file and ensure that all actions ordered by the September 2013 Board remands are undertaken, fully complied with, and satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). 2. Thereafter, the AOJ should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further 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 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs