Citation Nr: 0812397 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-10 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a cervical spine condition, to include as secondary to right knee and left ankle disabilities. 2. Entitlement to an increased evaluation for residuals of right knee injury, degenerative joint disease and chondromalacia, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, evaluated as noncompensable from August 5, 2003, and as 10 percent disabling from September 7, 2003. 4. Entitlement to a total rating based on individual unemployability, due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from September 1983 to December 1985. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO), which denied an evaluation in excess of 10 percent for residuals of right knee injury, degenerative joint disease and chondromalacia; assigned a 10 percent evaluation for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, from September 7, 2003; and denied a TDIU. It is also on appeal from a September 2006 rating decision that denied service connection for a neck condition. The issue of entitlement to service connection for a cervical spine condition, to include as secondary to right knee and left ankle disabilities, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. During a March 2008 hearing before the undersigned Acting Veterans Law Judge, the veteran filed a motion to advance his appeal on the docket. In March 2008, the Board granted this motion. Also during the March 2008 hearing, the veteran raised the issue of entitlement to service connection for a left knee condition. The Board refers this to the RO for appropriate development. FINDINGS OF FACT 1. The competent medical evidence, overall, shows that the veteran's right knee degenerative joint disease does not result in limitation of flexion to 30 degrees, limitation of extension to 10 degrees, or recurrent subluxation or instability. 2. The competent medical evidence, overall, shows that the veteran's right knee chondromalacia results in severe recurrent subluxation and instability. 3. The competent medical evidence, overall, shows that for the period beginning August 5, 2003, the veteran's left knee disability has resulted in moderate limitation of motion. 4. The competent medical evidence, overall, does not show that the veteran's left ankle disability results in marked limitation of motion or ankylosis. 5. During a March 2008 hearing before the undersigned Acting Veterans Law Judge, the veteran withdrew the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-61 (2007). 2. The criteria for a 30 percent evaluation for right knee chondromalacia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2007). 3. The criteria for a 10 percent evaluation for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, from August 5, 2003, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2007). 4. The criteria for an evaluation in excess of 10 percent for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2007). 5. The criteria for withdrawal of a Substantive Appeal by the veteran with regard to the issue of entitlement to a TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA duty to notify was satisfied with respect to the first three elements by way of an August 2003 letter sent to the appellant that fully addressed the first three notice elements and was sent prior to the respective initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. Correspondence to the veteran sent in March 2005 provided him with adequate notice of the pertinent diagnostic codes. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The appellant was not asked to submit evidence and/or information in his possession to the AOJ. Thus, the VCAA duty to notify has not been satisfied with respect to the fourth notice element of asking the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication and thus the purpose of the fourth notice element was not frustrated. Based on the notice letter discussed above, a reasonable person could be expected to understand from the notices what was needed to substantiate the claims. The veteran's testimony during the March 2008 hearing before the undersigned Acting Veterans Law Judge reflects that he had actual knowledge that he could provide any evidence in his possession that pertains to the claims. Further, there is no indication that VA has not obtained all available relevant evidence. In October 2007, he stated that he did have additional evidence to submit, which he identified only as the report of an upcoming VA nerve test (which, according to a subsequent print out of the veteran's VA medical appointments, did not take place). He did not identify any other outstanding additional evidence. The veteran's correspondence makes it clear that there is no other evidence and/or information in his possession or that needs to be required. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that upon receipt of an application for a service-connection claim, VA must inform the veteran that a disability rating and an effective date will be assigned if benefits are awarded. In this case, the veteran was not provided Dingess notice. Despite this fact, the Board finds no prejudice to the veteran in proceeding with the issuance of the final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In this regard, the Board concludes below that an increased evaluation for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, from August 5, 2003, is warranted. The RO will provide Dingess notice with respect to this claim when it implements the Board's grant decision. The Board also concludes below that the preponderance of the evidence is against the veteran's claims for an increased evaluation for right knee disability and an increased evaluation for left ankle disability. Thus, any questions as to the appropriate evaluations or effective dates to be assigned are rendered moot. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records and records from the Social Security Administration (SSA). The veteran was provided opportunities to set forth his contentions during the March 2008 hearing before the undersigned Veterans Law Judge, as well as an August 2007 hearing at the RO before a Decision Review Officer. The appellant was afforded VA medical examinations in September 2003 and September 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Again, VA medical records show that the veteran did not undergo the upcoming VA nerve testing he reported in October 2007 correspondence. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Evaluations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). With respect to each disability on appeal, the veteran testified during the March 2008 hearing before the undersigned Veterans Law Judge as to the severity of his symptoms. He could not walk or stand for long periods of time. He used a wheelchair and the pain medication prescribed for him by VA did not help. He had constant right knee pain and swelling and reduced range of motion of the left ankle. He was receiving SSA benefits due to his knees and cervical spine. In this regard, the Board observes that VA has obtained medical records from the SSA. Right knee The veteran's right knee is evaluated on limitation of flexion. Limitation of flexion of a knee to 45 degrees warrants a 10 percent evaluation, while limitation to 30 degrees warrants a 20 percent evaluation. Diagnostic Code 5260. Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Limitation of extension of a knee to 10 degrees warrants a 10 percent evaluation, while limitation to 15 degrees is rated 20 percent. Diagnostic Code 5261. The Board also notes that VAOPGCPREC 23-97 held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003-5010 and Diagnostic Code 5257 based on additional disability. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Hence, if a claimant has a disability rating under Diagnostic Code 5257 for instability of the knee and there is also X-ray evidence of arthritis and limitation of motion, a separate rating is available under Diagnostic Code 5003 or Diagnostic Code 5010. Likewise, if a claimant has a disability rating under Diagnostic Code 5003 for arthritis of the knee, and there is evidence of instability, a separate rating is available under Diagnostic Code 5257. See VAOPGCPREC 9-98. Slight recurrent subluxation or instability of the knee warrants a 10 percent evaluation; moderate recurrent subluxation or instability of the knee is rated 20 percent and severe recurrent subluxation or instability of the knee is rated 30 percent. Diagnostic Code 5257. VA and private treatment records dated during the appeal period show treatment for the veteran's right knee. He underwent right knee arthroscopic surgery in 2003. A November 2003 VA progress note provides that "[d]ue to his knee problems" the veteran was currently unable to work. He was not expected to return to his previous employment in warehouse and factory work. On VA examination in September 2003, the veteran complained of right knee pain and said that he had recently undergone arthroscopic surgery. The report notes that the operative report of the knee scope identified a grade 4 chondromalacia of the distal femur as well. The veteran currently walked with a cane and took anti-inflammatories with minimal relief. He had worked as a delivery man but was unable to continue actively with that job. On physical examination, the veteran's right knee had range of motion from zero to 130 degrees. It was stable to varus and valgus stress. Lachman's and anterior and posterior Drawer's tests were negative and McMurray's sign was negative. The pertinent assessment was right knee pain. The veteran's scope provided objective evidence of the etiology of his right knee pain stemming from chondromalacia of the distal femur and also the presence of a torn lateral meniscus. The veteran could suffer from flare-ups at times of increased strenuous activity or changes in the weather and he did suffer from pain and physical examination findings as stated above. The examiner was not able at this time to state with any degree of medical certainty what these changes at times of flare-ups would be. On VA examination in September 2007, the veteran reported having lateral pain of 7/10 located diffusely throughout the knee. He had taken multiple anti-inflammatories for his knee but was not taking any currently due to aggravation of his stomach. He had a history of swelling, and popping with pain, but no history of locking. He had used a brace in the past but was not using one today. He used a cane and was walking with one today. He could walk a block without it. He reported normally using a wheelchair but was not that day. He had no problems with activities of daily living. On physical examination, range of motion was from zero to 110 degrees. Active and passive ranges of motion were the same. There was no change with repetition and there was pain with extremes of flexion. The veteran had elements of symptomatic exaggeration and was guarding on examination. He was stable to varus and valgus stress at zero and 30 degrees, with negative Lachman's and anterior and posterior Drawer's. There were two 5 cm. scars that were well healed and not fixed to the underlying tissue. There were no signs of infection and there was no muscle loss, erythema, edema or discharge. The pertinent assessment was mild degenerative joint disease right knee. The examiner observed that there was mild discomfort associated with the examination of the right knee. It was conceivable that the pain could further limit function as described, particularly with repetition. It was not feasible to attempt to express this in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. The foregoing treatment and VA examination records are evidence against the veteran's claim for an increased evaluation for right knee degenerative joint disease. They simply do not show limitation of flexion of the right knee to 30 degrees, as required for a 20 percent evaluation under Diagnostic Code 5260. In addition, they fail to show limitation of extension of the right knee to 10 degrees, so additional compensation under Diagnostic Code 5261 is not warranted. The foregoing treatment and VA examination records do support additional compensation for the veteran's right knee chondromalacia. While VA examination reports show that the veteran's right knee was not manifest by recurrent subluxation or instability, they also note that he had grade 4 chondromalacia, right knee pain stemming from chondromalacia, guarding on examination and popping. In addition, the November 2003 VA treatment report provides that the veteran was unable to work due to his knee problems. Thus, additional compensation consisting of a 30 percent evaluation for chondromalacia is warranted under Diagnostic Code 5257 and VAOPGCPREC 9-98. The Board is aware that the veteran has two 5 cm. scars on the knee and that the RO has not provided him the rating criteria for scars set forth at 38 C.F.R. § 4.118. In general, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14 (2007); see Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The claimant is entitled to a combined rating where the symptomatology is distinct and separate. Id. In this case, the September 2007 VA examination of the scar was negative for any pertinent findings or resulting functional impairment. 38 C.F.R. § 4.118. Thus, additional compensation for the scars is not warranted and the RO's failure to provide the veteran the pertinent rating criteria is harmless error. The Board recognizes that the veteran has complained of pain and flare-ups. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The September 2007 VA examination found that active and passive range of motion were the same, with no change in range of motion with repetition. The September 2007 and September 2003 VA examination reports each note that flare- ups could occur, but it was not possible to express them in terms of the changes or additional limitation of motion there would be. Despite the veteran's complaints, the Board finds that the effects of pain reasonably shown by the record to be due to his service-connected right knee disability are contemplated in the 10 and 30 percent ratings assigned to that condition. As noted above, the evidence simply does not show that pain, due to disability of the right knee, has caused functional loss greater than that contemplated by these evaluations. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. In sum, the medical evidence demonstrates that the veteran is entitled to a separate 30 percent evaluation for right knee chondromalacia but is not entitled to an evaluation in excess of 10 percent for right knee degenerative joint disease. As the preponderance of the evidence is against the latter claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Left ankle The veteran's left ankle disability is evaluated on limitation of motion. Moderate limitation of ankle motion warrants a 10 percent evaluation, and marked limitation of motion warrants a 20 percent evaluation. Diagnostic Code 5271. Ankylosis of the ankle in plantar flexion, less than 30 degrees, warrants a 20 percent evaluation. Diagnostic Code 5270. VA treatment records dated during the appeal period show treatment for the left ankle. On VA examination in September 2003, the veteran complained of left ankle pain and said he could not ambulate easily. The veteran currently walked with a cane and took anti- inflammatories with minimal relief. He had worked as a delivery man but was unable to continue actively with that job. He said that the pain increased with changes in weather and strenuous activity. On physical examination, the left ankle had range of motion to 15 degrees of dorsiflexion and to 45 degrees of plantar flexion. There was no current swelling. The pertinent assessment was post-traumatic changes of the left ankle. The veteran had a distinct remote injury to his left ankle, in which he suffered an avulsion-type injury of the medial malleolus during his time in the military. X-rays were consistent with mild post-traumatic changes that would likely be due to a previous ankle injury. The veteran could suffer from flare-ups at times of increased strenuous activity or changes in the weather and he did suffer from pain and physical examination findings as stated above. The examiner was not able at this time to state with any degree of medical certainty what these changes at times of flare-ups would be. On VA examination in September 2007, the veteran complained of pain in the medial aspect of the left ankle which occurred 3-4 times in a 2-3 month period. There was a history of swelling. The pain was related to weather changes mainly. He did not use a brace or take medications. He used ice when it occurred. He had no problems with activities of daily living. The veteran's range of motion for the left ankle was to 20 degrees of dorsiflexion and 40 degrees of plantar flexion. Active and passive range of motion were the same, with no change or pain with repetition. The pertinent diagnosis was boney ligamentous sprain of the left ankle with mild degenerative joint disease of the tibiotalar joint. The examiner observed that there was mild discomfort associated with the examination of the left ankle. It was conceivable that the pain could further limit function as described, particularly with repetition. It was not feasible to attempt to express this in terms of additional limitation of motion as these matters could not be determined with any degree of medical certainty. The Board finds that the evidence supports a 10 percent evaluation for the left ankle disability, from August 5, 2003. In particular, the September 2003 VA examination shows that the veteran's left ankle satisfied the criteria for a 10 percent evaluation under Diagnostic Code 5271 during the period beginning August 5, 2003. The Board also finds that the foregoing evidence weighs against VA treatment and examination reports are evidence against entitlement to an evaluation in excess of 10 percent. It simply fails to show marked limitation of motion or any ankylosis. Thus, a 20 percent evaluation is not warranted under Diagnostic Codes 5271 or 5270. The Board recognizes that the veteran has complained of pain and flare-ups. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone, supra. The September 2007 VA examination found that active and passive range of motion were the same, with no change in range of motion or pain with repetition. The September 2007 and September 2003 VA examination reports each note that flare-ups could occur, but it was not possible to express them in terms of the changes or additional limitation of motion there would be. Despite the veteran's complaints, the Board finds that the effects of pain reasonably shown by the record before the Board to be due to the veteran's service-connected left knee disability are contemplated in the current 10 percent rating assigned to the condition. As noted above, the evidence simply does not show that pain, due to disability of the left ankle, has caused functional loss greater than that contemplated by this evaluation. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. In sum, the medical evidence demonstrates that the veteran is not entitled to the claimed increased evaluation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. Extraschedular evaluations The Board recognizes the veteran's contentions that his right knee and left ankle disabilities prevent his employment. The Board is aware of the effects of these disabilities on the veteran's life and functioning. However, there is no evidence of record, such as employment or medical records, showing that any of these disabilities result in frequent periods of hospitalization or marked interference with employment beyond that contemplated by the current evaluations. The veteran has testified that his SSA award is based on both of his knees (one of which is non-service- connected) and his cervical spine (which is not service- connected). The November 2003 VA opinion notes only that the veteran was unemployed at that time. The Board also observes that the veteran is withdrawing his claim for a TDIU, as discussed below. Thus, the Board finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the disabilities on appeal, that would take the veteran's case outside the norm so as to warrant extraschedular ratings. Accordingly, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). TDIU Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the March 2008 hearing, the veteran withdrew his appeal to the Board concerning the issue of entitlement to a TDIU. There remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, it is therefore dismissed. ORDER An evaluation in excess of 10 percent for right knee degenerative joint disease is denied. A 30 percent evaluation for right knee chondromalacia is granted, subject to the rules and regulations governing the award of monetary benefits. A 10 percent evaluation for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, from August 5, 2003, is granted, subject to the rules and regulations governing the award of monetary benefits. An evaluation in excess of 10 percent for residuals of chip fracture, left medial malleolus with post-traumatic arthritis, is denied. The issue on appeal of entitlement to a TDIU is dismissed. REMAND A preliminary review of the veteran's claims file indicates that the claim for service connection for a cervical spine disability requires additional development. The veteran contends that his cervical spine condition is due to his service-connected right knee and left ankle disabilities. In addition, during the appeal he has testified that he had neck pain while on active duty, although it was not documented, that continued after service. The Board observes that lay testimony is competent 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). A March 2005 private medical record reflects that the veteran has degenerative arthritis of the cervical spine. In light of the foregoing, additional evidentiary development is required as to the relationship, if any, between the veteran's current claimed cervical spine condition and his service. Accordingly, the case is REMANDED for the following action: 1. Arrange for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any present cervical spine condition. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the objective medical history (including that set forth above), the veteran's own reported history of neck pain during service that continued after separation, and the results of clinical evaluation and any tests that are deemed necessary, the examiner is asked to express an opinion whether it is at least as likely as not that any current cervical spine condition is causally related to the veteran's service. The examiner should also state whether it is at least as likely as not that any current cervical spine condition was caused or aggravated by the veteran's service-connected right knee or left ankle disabilities. The examiner is requested to provide a rationale for any opinions expressed in a legible report. 2. Then, readjudicate the veteran's claim for service connection for cervical spine condition, to include as secondary to right knee and left ankle disabilities. If the decision is adverse to the veteran, he and his representative should be provided an SSOC. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs