Citation Nr: 0810998 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-26 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for inguinal hernia. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for right olecranon bursitis. 6. Entitlement to service connection for chronic low back pain 7. Entitlement to an initial rating in excess of 10 percent for left knee chrondomalacia. 8. Entitlement to an initial rating in excess of 10 percent for right knee chrondomalacia. 9. Entitlement to an initial compensable rating for degenerative joint disease, fifth finger of the left hand, to include healed fracture of the left wrist. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1979 to July 1982 and periods of active duty for training and inactive duty training with the South Carolina National Guard from May 1994 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 2004 and April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran testified at a personal hearing before the undersigned Acting Veteran's Law Judge, sitting at the RO in August 2007; a transcript of the hearing is associated with the claims file. At this hearing, the veteran submitted additional evidence consisting of April 2007 and August 2007 statements by his employer, May 2007 to August 2007 VA treatment records, a September 2006 opinion by Dr. A. D. V., statements from Dr. E. B. and M. G., and service medical records. See 38 C.F.R. § 20.1304 (2007). The veteran waived agency of original jurisdiction (AOJ) consideration of such evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. The Board also notes, subsequent to certification of the appeal to the Board, the veteran submitted VA treatment records dated in May 2007, but did not waive AOJ consideration of this evidence. Id. However, as these records are duplicative of information already contained in the claims file prior to issuance of the last supplemental statement of the case (SOC) in June 2007, the Board finds that a remand for AOJ consideration of these records is unnecessary. The issues of entitlement to service connection for bilateral plantar fasciitis, inguinal hernia, right olecranon bursitis, and a back disorder and an initial compensable rating for degenerative joint disease of the right fifth metatarsal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not present in service, manifested within one year of the veteran's discharge from service, or shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The medical evidence of record does not demonstrate that the veteran has currently diagnosed sinusitis. 3. Left knee chrondomalacia is manifested by subjective complaints of pain, worse with prolonged sitting, stair climbing, and walking; some popping and locking, and occasional giving way when climbing stairs; and objective evidence of mild varus deformity that was correctable; full range of motion of the knees from full extension to 120 degrees flexion; tenderness about the patella with normal tracking; negative valgus-varus testing; normal anterior and posterior drawer tests; positive patellar grind test; and no effusion. 5. Right knee chrondomalacia is manifested by subjective complaints of pain, worse with prolonged sitting, stair climbing, and walking; some popping and locking, and occasional giving way when climbing stairs; and objective evidence of mild varus deformity that was correctable; full range of motion of the knees from full extension to 120 degrees flexion; tenderness about the patella with normal tracking; negative valgus-varus testing; normal anterior and posterior drawer tests; positive patellar grind test; and no effusion. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Sinusitis was not incurred in or aggravated by the veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The criteria for a rating in excess of 10 percent for left knee chrondomalacia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). 4. The criteria for a rating in excess of 10 percent for left knee chrondomalacia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With regard to the veteran's claims for service connection for hypertension and sinusitis, a VCAA letter was sent in December 2004, prior to the initial unfavorable decision issued in April 2005. VCAA notice with regard to the veteran's increased rating claims is discussed below. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. In reviewing the veteran's claims of entitlement to service connection, the Board observes that the VCAA notice issued in December 2004 informed the veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claims and his and VA's obligations in providing such evidence for consideration; and requested that he submit any evidence in his possession relevant to his claims to VA. Thus, as the veteran received a fully VCAA compliant letter for both service connection claims prior to the first adjudication, the Board finds that to decide the appeal would not be prejudicial to him. Also pertinent to VA notice requirements is the United States Court of Appeals for Veterans Claims (Court) decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, the veteran was advised of the evidence necessary to establish entitlement to disability ratings and effective dates in an attachment to the April 2006 supplemental statement of the case. A supplemental statement of the case was subsequently provided to the veteran in July 2006. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130, 2007 WL 2694606 (Fed. Cir. Sept 17, 2007) [hereinafter Mayfield III]. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). Moreover, as the Board concludes herein that the preponderance of the evidence is against the veteran's service connection claims, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot. As to VA's duty to notify and the veteran's claim for right and left knee disabilities, the board notes that the appeal arises from the veteran's disagreement with the initial evaluation following the grant of service connection for those disabilities. The Federal Circuit and Court have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, since VA's notice criteria was satisfied because the RO granted the veteran's claim for service connection, the Board also finds that VA does not run afoul of the Court's recent holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. The Board also finds that any defects with regard to the timing of the VCAA notice are harmless because of the thorough and informative notices provided throughout the adjudication process. In addition, the veteran has had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the AOJ subsequent to receipt of the required notice. Thus, there has been no prejudice to the veteran, and any defect in the timing of the notice has not affected the fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield, 19 Vet. App., supra, rev'd on other grounds, 444 F.3d, supra (specifically declining to address harmless error doctrine), on remand, 20 Vet. App. 537 (2006) (discussing Board's ability to consider "harmless error"); see also Dingess/Hartman, supra; cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (duty to notify does not extend in perpetuity or impose duty on VA to provide notice on receipt of every piece of evidence or information). Consequently, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claims and providing him with a VA examination. The veteran's VA treatment records, private treatment records, and VA examination reports dated in June 2004, October 2004, December 2004, January 2005, and November 2005 were reviewed by both the AOJ and the Board in connection with adjudication of his claims. The veteran has identified no additional, relevant records that VA needs to obtain for an equitable disposition of his claims. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claims without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claims. II. Service Connection Claims Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. A finding of direct service connection requires medical evidence of a 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. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Under VA regulations, active service includes active duty, active duty for training during which disability as a result of disease or injury is incurred or aggravated in line of duty or inactive duty training during which disability as a result of injury is incurred or aggravated in line of duty. A. Hypertension The veteran contends that he was diagnosed with hypertension during a routine physical examination in service in 1990. Therefore, he argues that service connection is warranted for hypertension. Service medical records are negative for any findings of complaints, treatment, or diagnosis of hypertension. When he was examined in July 1988, February 1990, July 1992, April 1999, and February 2002 his blood pressure, respectively, was 128/84, 120/70, 128/88, 138/82, and 132/86, which is well within the normal range. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007), Note (1) (hypertension means that diastolic blood pressure is predominantly 90 mm. or greater, and /or systolic blood pressure is predominantly 160 mm. or greater). None of those reports made any reference to the veteran's blood pressure, other than reporting the reading. Indeed, the veteran specifically denied hypertension at the July 1992, April 1999, and February 2002 examinations. The Board observes that post-service medical records reveal a current diagnosis of hypertension. Specifically, an October 2004 private treatment record reports a diagnosis of hypertension. Additionally, the December 2004 VA examiner diagnosed hypertension, labile and borderline, and a November 2005 private and an August 2007 VA treatment record report a diagnosis of hypertension. Thus, the Board concludes that the veteran has a current diagnosis of hypertension. The Board has considered all relevant evidence of record regarding the veteran's claim for service connection for hypertension. The Board first considered whether service connection is warranted for hypertension on a presumptive basis. However, the record fails to show that the veteran manifested hypertension to a degree of 10 percent within one year following his service discharge in July 1982. As such, presumptive service connection is not warranted for hypertension. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A presumption of service connection does not exist with respect to National Guard service. The Board next considered whether service connection is warranted for hypertension on a direct basis. However, while the veteran has a current diagnosis of hypertension, the record shows no complaint or diagnosis of the disability during active service or for many years thereafter. Although the veteran has contended that he was diagnosed in 1990 during a period of active duty for training, the first diagnosis of hypertension of record is dated in October 2004, more than 20 years since active service and after his retirement from the National Guard. The Board observes that the December 2004 VA examiner did not provide an opinion with regard to the etiology of the veteran's hypertension. However, as the only evidence of an in-service incurrence of hypertension is the veteran's own statements, a VA opinion is unnecessary as it would be based only on the veteran's contentions and not supported by the medical evidence of record. Indeed, with respect to the veteran's contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, a disorder that was indicated in the medical record to exist years after service, or a finding that one disorder is related to another disorder, is not a condition capable of lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In any event, regarding the issue of service connection on appeal, the Board finds that the veteran's lay statements our outweighed by the service and post-service treatment records (indicating that hypertension began years after service). The Board finds it to be particularly significant the veteran first filed a claim for service connection for hypertension nearly two decades after leaving service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Absent competent evidence of a causal nexus between the veteran's hypertension and service, he is not entitled to service connection on a direct basis. B. Sinusitis Service medical records reveal that the veteran was diagnosed with sinusitis in April 1986. However, at a July 1992 physical examination, the veteran denied a history of sinusitis, and the examiner notes only hay fever by history. In contrast, at April 1999 and February 2002 physical examinations, the veteran reported a history of sinusitis and hay fever. The Board notes the lay statement of R. G. that states that sinusitis was a constant source of pain for the veteran during his annual National Guard training; however, except for the April 1986 record, there is no indication within the veteran's service records that he suffered from sinusitis in service. Further, the Board finds no medical evidence showing that the veteran has a current diagnosis of sinusitis. October 2003 and November 2004 private treatment records show a diagnosis of allergic rhinitis. A January 2005 VA treatment record reports allergic rhinitis and frequent sinusitis by history, and a January 2005 X-ray report indicates mild leftward deviation of the nasal septum, but are otherwise negative. No other post-service medical records refer to sinusitis, either as a current diagnosis or by history. Thus, the only evidence of record that the veteran has sinusitis as a result of his military service is his own statements and the lay statement of R. G. As stated, only those with specialized medical knowledge, training, or experience are competent to provide evidence on questions of diagnosis and causation. See Jones, supra; Espiritu, supra; see also Layno, supra. Therefore, the Board concludes that there is no current diagnosis of sinusitis. Without a disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). III. Increased rating claims Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained 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; 38 C.F.R. § 4.1. The basis of disability evaluation 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. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the veteran's right and left knee disabilities. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of staged ratings in evaluating the veteran's service-connected knee disabilities In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. 38 C.F.R. § 4.10. 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. 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. The veteran's service-connected right knee disability and left knee disability are each assigned a 10 percent rating for limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007). The veteran contends that his symptomology is worse than is contemplated under these ratings, and that a higher rating should, therefore, be assigned. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. With X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes, a 20 percent rating will be assigned. With X-ray evidence of involvement of 2 or more major joints, a 10 percent rating will be assigned. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Diagnostic Code 5003, Note (1). Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is assigned a 20 percent rating. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. Under Diagnostic Code 5260, flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Where extension is limited to 20 degrees, a 30 percent rating is assigned. Where extension is limited to 30 degrees, a 40 percent rating is assigned. Where extension is limited to 45 degrees, a 50 percent rating is assigned. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Initially, the Board notes that, with regard to the left knee, the veteran underwent arthroscopic excision of plica in August 2006. He was in receipt of a 100 percent evaluation for convalescence from August 8, 2006 to November 30, 2006 for the left knee only. A follow-up treatment record dated in August 2006 states that the wound was healing well without complication and the knee was cool with trace effusion. An October 2006 follow-up shows use of a crutch, no effusion, and trace crepitus. A November 2006 follow-up reports that maximum benefit from physical therapy had been achieved and range of motion was from 0 to 125 degrees. Dr. T.E. indicates in a December 2006 treatment note that increased pain with some crepitance is the result of the veteran ceasing his anti-inflammatory medication against instructions. The veteran's left knee disability was reassigned a 10 percent rating, effective December 1, 2006. At the October 2004 VA examination, the veteran had subjective complaints of symptoms for five to six years, to include pain in the knees with standing, running, and walking, as well as stiffness in the morning. He further indicated problems with squatting, climbing stairs, and kneeling. He denied swelling, heat, redness, or instability. Objectively, the examiner found range of motion of both knees from 0 to 135 degrees with minimal patellar crepitus in both knees. Patellofemoral apprehension was positive, and Lachman's and McMurray's tests were negative. The examiner found no additional functional limitation due to pain, weakness, fatigability, or lack of endurance. He diagnosed bilateral mild degenerative arthrosis of the patellofemoral and medial joint compartments without antecedent history of traumatic events. At a November 2005 VA examination, the veteran complained of stiffness with prolonged sitting, a burning sensation in both knees, and aggravation of pain with standing and sitting. He presented with knee braces on both knees. The examiner found extension in both knees to 0 degrees, right knee flexion to 110 degrees without pain and to 120 with pain, and left knee flexion to 75 degrees without pain and to 90 degrees with pain. Crepitus was noted in both knees with flexion and extension. Repeated valgus-varus and anterior and posterior drawer tests revealed no instability. No additional limitation was noted due to pain, weakness, fatigability, or lack of endurance. A July 2006 VA treatment record reveals that the veteran reported pain worse on the left than right, and with prolonged sitting, stair climbing, and walking. He also indicated some popping and locking, and occasional giving way when climbing stairs. Objective examination of both knees revealed mild varus deformity that was correctable. Full range of motion of the knees from full extension to 120 degrees flexion was observed. There was tenderness about the patellas with normal tracking bilaterally. Valgus-varus testing revealed no instability. Anterior and posterior drawer tests were normal. A patellar grind test was positive bilaterally. No effusion was present in either knee. February 2007 VA treatment records show the veteran complained of locking and popping. There was no crepitus or joint instability. Early degenerative joint disease was present in March 2007 X-rays, but no bony masses were found. A March 2007 VA treatment record shows the veteran was using a crutch to walk. A March 2007 MRI of the left knee shows mild degenerative joint disease with degenerative thinning of the hyaline cartilage at the medial and lateral compartments of the femorotibial joint. With regard to the both knees, the Board finds that the symptomology does not support a rating in excess of 10 percent for either knee. Specifically, a higher rating under Diagnostic Code 5260 is not warranted without evidence of flexion limited to 30 degrees or less. A separate rating for limitation of extension is not warranted unless extension is limited to 5 degrees or more. VAOPGCPREC 9-2004 (September 17, 2004). Even with consideration of greater limitations due to pain, the Board finds that limitations of motion to warrant a higher rating are not present in either knee at any time during the rating period. The Board observes that Diagnostic Code 5003, degenerative arthritis established by X-ray findings, is also for consideration as X-rays have shown early degenerative joint disease. However, as discussed above, a separate rating for degenerative arthritis is only for application when the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code. As the veteran is in receipt of a 10 percent rating for limitation of motion under Diagnostic Code 5260 for each knee, a separate rating under Diagnostic Code 5003 is not warranted. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (2007), as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263, pertaining to knee ankylosis, other impairment of the knee due to subluxation or lateral instability, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum, respectively, are not for consideration as the evidence fails to demonstrate such symptomatology in either the right knee or left knee. As such, a review of the record fails to reveal any additional functional impairment associated with the veteran's right or left knee disability so as to warrant application of alternate rating codes. IV. Other considerations When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the veteran's claims of entitlement to service connection and increased ratings for his service-connected knee disabilities. Therefore, his claims must be denied. With regard to the veteran's increased rating claims, referral for extra-schedular consideration has been contemplated. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2007). The Board finds no evidence that the veteran's service-connected knee disabilities present such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The objective medical evidence of record shows that manifestations of the veteran's service-connected disabilities do not result in a marked functional impairment in a way or to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for sinusitis is denied. Entitlement to a rating in excess of 10 percent for left knee chrondomalacia is denied. Entitlement to a rating in excess of 10 percent for right knee chrondomalacia is denied. REMAND The veteran contends that his bilateral plantar fasciitis, right olecranon bursitis, and current back disorders are the result of injuries in service, and that service connection is warranted for these disabilities, as well as for, his in- service inguinal hernia and related surgery. The Board determines that a remand is necessary to afford the veteran VA examinations to ascertain the nature and etiology of his current bilateral foot disorder, right elbow disorder, back disorder, and inguinal hernia. In reference to the veteran's bilateral foot disorder, service medical records reveal treatment for various foot disorders. April 1982 service records indicate treatment for sore feet and bruises due to running barefoot. The veteran was treated for a plantar wart on the left foot in June 1988, and a spur on the bottom of the right foot in March 2004 during active duty for training. Post-service records indicate the existence of bilateral plantar fasciitis since 2003. With regard to a nexus between the veteran's bilateral foot disorder and his active duty and National Guard service, the Board acknowledges the October 2006 opinion of Dr. B. L., which states that the veteran has obvious degenerative changes with degenerative arthritis, spurring and mechanical overuse, probably from his military career. However, the Board notes that Dr. B. L.'s opinion does not relate the veteran's current disorder to a specific injury or incident during his military service. Further, the July 2004 VA examiner did not provide an opinion with regard to the etiology of the veteran's bilateral foot disorder. Accordingly, another VA examination is necessary to ascertain the nature and etiology of the veteran's current bilateral foot disorder. As for the inguinal hernia, service medical records note by history an operation for bilateral inguinal hernias in October 1983. However, except by reference to the operation as part of the veteran's medical history, there is no mention of further treatment or diagnosis related to a hernia during service. With regard to post-service records, no medical evidence indicates the veteran currently suffers an inguinal hernia or residuals of his inguinal hernia or the October 1983 operation. Nevertheless, the Board observes that the veteran could have residuals from his surgery, such as scars, which have not been documented. Therefore, the Board finds that a VA examination is necessary to determine the existence of any residuals of the veteran's in-service inguinal hernias or related surgery. The Board observes that the veteran had a diagnosis of right olecranon bursitis in March 1997 during a period of active duty for training. Additionally, treatment for continued swelling and pain was noted in May 1997 service records. A September 1997 record reports pain in the upper right arm, and an October 1997 record indicates treatment for right elbow tendonitis. The Board notes that post-service records report treatment for right olecranon bursitis. Specifically, a January 2005 X-ray of the elbow indicates olecranon bursitis could be the reason for the position of the ossicle, and a January 2005 VA treatment record confirms the diagnosis. A February 2005 VA treatment record notes that the veteran was still experiencing pain. An August 2005 VA treatment record reports bursitis of the elbows by history. Thus, although the Board recognizes that several years have passed between the veteran's in-service treatment for the disorder and his current treatment, the Board finds that a VA examination is necessary to determine whether the current disorder is related to the initial injury that occurred in service. With regard to the veteran's back disorder, the Board observes that the veteran's service medical records contain multiple mentions of back pain from different sources. A physical examination dated in July 1988 reports lower back pain since an auto accident in January 1988, but resolving. The clinical evaluation at that time was normal. A July 1992 physical examination notes a lumbosacral strain in September 1991 with no sequelae. The clinical examination was again normal. March 1996 records report that the veteran complained of a left thigh and hip injury when lifting an immersion heater, and April 1996 records report follow-up treatment for that injury, including treatment for back pain. The Board also notes that the veteran has been treated regularly for back pain since filing his claim in May 2004. Additionally, a January 2005 VA treatment report refers to degenerative joint disease of the back, and a January 2006 letter from Dr. W. O. states that the veteran has degenerative disc disease, supported by a December 2005 MRI showing a small disc herniation at L4-L5 with a small focal tear at L5-S1. Therefore, the Board concludes that the veteran has a current diagnosis of a back disorder, to include a diagnosis of lumbar radiculopathy. However, the veteran has not been afforded a VA examination to determine if there is a relationship between any of his in-service injuries and his current back disorder. Further, the Board notes that, in a November 2006 statement, Dr. T. E. opined that the veteran's back pain is secondary to his inability to flex his knees when bending over, thus raising the possibility of secondary service connection. Consequently, the Board determines that a remand is necessary to schedule the veteran for a VA examination to determine the nature and etiology of his current back disorder. The Board observes that, while this appeal was pending, VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent of the amendment is to conform the regulation to Allen v. Brown, 7 Vet. App. 439 (1995), the Court decision that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. See 71 Fed. Reg. 52,744 (September 7, 2006). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury," and the text amended to include a new paragraph: (b) Aggravation of nonservice-connected disabilities. 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. However, VA will not concede that 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. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Therefore, this remand for substantive development will allow for notification of the evidentiary requirements of secondary service connection claim, in accordance with Allen, supra. With regard to the veteran's claim for a higher disability evaluation for his degenerative joint disease, fifth finger of the left hand, to include healed fracture of the left wrist, the Board notes that in November 2004, the veteran submitted a notice of disagreement with an RO decision granting service connection and awarding an initial noncompensable rating for this disability. However, a statement of the case has not been issued. Thus, a remand is required for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The veteran should be sent a notice of the evidence required to substantiate a claim for secondary service connection, i.e., that the veteran's back disorder was incurred or aggravated beyond its normal progression as a result of his service-connected disabilities, in accordance with Allen. 2. A statement of the case should be issued in response to the November 2004 notice of disagreement submitted by the veteran on the issue of degenerative joint disease, fifth finger of the left hand, to include healed fracture of the left wrist, in accordance with Manlincon. 3. The veteran should be scheduled for VA examinations to assess the current nature and etiology of the veteran's bilateral foot disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. After reviewing the claims file and examining the veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that any current bilateral foot disorder is etiologically related to the veteran's active service? The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. The veteran should be scheduled for a VA examination to determine the nature of any residuals from the veteran's in- service hernia and surgery and their etiology. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. After reviewing the claims file and examining the veteran, the examiner should respond to the following: What if any residuals of the veteran's in-service inguinal hernia and surgery are present, and is it at least as likely as not (a 50% or higher degree of probability) that such residuals are etiologically related to the veteran's active service? The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 5. The veteran should be scheduled for a VA examination to assess the current nature and etiology of any current right elbow disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. After reviewing the claims file and examining the veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that any current elbow disability is etiologically related to the veteran's active service? The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 6. The veteran should be scheduled for VA examination to assess the current nature and etiology of any current back disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. After reviewing the claims file and examining the veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that any current back disability is etiologically related to the veteran's active service? b) If the response to the first question is negative, is it at least as likely as not (a 50% or higher degree of probability) that any current back disability is proximately due to, or caused by, the veteran's service- connected right and left knee disabilities? c) Is it at least as likely as not (a 50% or higher degree of probability) that any current back disability has been aggravated by the veteran's service-connected right and left knee disabilities? If so, the examiner should report the baseline level of severity of the back disability prior to 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. If some of the increase in severity of the back disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. See generally 38 C.F.R. § 3.310(b) (effective October 10, 2006). d) Is it at least as likely as not (a 50% or higher degree of probability) that any current lumbar radiculopathy is etiologically related to the veteran's active service or caused by the veteran's back disability? The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 7. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims file. The veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claims. 38 C.F.R. § 3.655 (2007). 8. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the veteran's service connection claims should be readjudicated, to include all evidence received since the June 2007 SSOC. The veteran and his representative should then be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) 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. 2007). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs