Citation Nr: 0813317	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  05-27 766	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
spine disorder.

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
right arm disorder.

3.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
left hand disorder.

4.  Entitlement to an increased evaluation for Graves 
disease, currently evaluated as 10 percent disabling.

5.  Entitlement to an initial evaluation in excess of 10 
percent for a right knee disorder.

6.  Entitlement to an initial evaluation in excess of 10 
percent for a left knee disorder.

7.  Entitlement to an initial compensable evaluation for a 
right elbow disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

K. Millikan Sponsler, Associate Counsel


INTRODUCTION

The veteran served on active military duty from March 1970 to 
March 1990.  This matter comes to the Board of Veterans' 
Appeals (Board) on appeal from a rating decision by the 
Cleveland, Ohio, Regional Office (RO) of the Department of 
Veterans Affairs (VA).

The Board notes that it does not have jurisdiction over the 
claim to reopen a claim for entitlement to service connection 
for hypertension.  Although the veteran filed a notice of 
disagreement and the RO issued a statement of the case (SOC) 
regarding that issue, the veteran specifically excluded the 
issue from his August 2005 substantive appeal.  See 38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (noting that 
an appeal consists of a notice of disagreement, an SOC, and a 
substantive appeal).  Accordingly, that issue is not 
addressed herein.

In a March 2008 informal hearing presentation, a claim for 
entitlement to service connection for pseudofollicularis 
barbae was raised.  This issue is referred to the RO for 
action deemed appropriate. 

The issues of entitlement to service connection for a spine 
disorder, a left hand disorder, and a right arm disorder, and 
the issue of entitlement to an initial compensable evaluation 
for a right elbow disorder are addressed in the remand 
portion of the decision below and are remanded to the RO via 
the Appeals Management Center, in Washington, DC.


FINDINGS OF FACT

1.  Service connection for a spine disorder, right arm 
disorder, and a left hand disorder was denied by an 
unappealed April 1990 rating decision. 

2.  Evidence associated with the claims file since the 
unappealed April 1990 rating decision includes service 
department records not already of file.

3.  Graves disease is manifested by fatigue and constipation. 

5.  Right and left knee disorders are manifested by 
degenerative changes and full extension and flexion.


CONCLUSIONS OF LAW

1.  Evidence submitted to reopen the claim of entitlement to 
service connection for a spine disorder is new and material, 
and therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 
7105 (West 2002); 38 C.F.R. § 3.156(a), (c) (2007).

2.  Evidence submitted to reopen the claim of entitlement to 
service connection for a right arm disorder is new and 
material, and therefore, the claim is reopened.  38 U.S.C.A. 
§§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a), (c) (2007).

3.  Evidence submitted to reopen the claim of entitlement to 
service connection for a left hand disorder is new and 
material, and therefore, the claim is reopened.  38 U.S.C.A. 
§§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a), (c) (2007).

4.  The criteria for an evaluation of 30 percent for Graves 
disease have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 
(West 2002); 38 C.F.R. § 4.1119, Diagnostic Code 7903 (2007).

5.  The criteria for an initial evaluation in excess of 10 
percent for a right knee disorder have not been met.  38 
U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Code 5260-5010 (2007).

6.  The criteria for an initial evaluation in excess of 10 
percent for a left knee disorder have not been met.  38 
U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, 
Diagnostic Code 5260-5010 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000, VA has 
duties to notify and assist the veteran.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2007).  With respect to the claims to reopen, the Board 
concludes that it may adjudicate the issue of whether new and 
material evidence has been submitted without determining 
whether these duties have been satisfied, because the Board 
is taking action favorable to the veteran by reopening and 
remanding the claims to reopen.  As such, this decision poses 
no risk of prejudice to the veteran.  See, e.g., Bernard v. 
Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. 
Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. 
Reg. 49,747 (1992).

With respect to the claims for increased evaluations, VA has 
met all statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326.  Prior to initial adjudication of the veteran's 
claims, a June 2004 letter satisfied the duty to notify 
provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); 
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  
Although notice was not provided to the veteran prior to the 
initial adjudication of his claims that a disability rating 
and an effective date would be assigned should service 
connection be granted, the Board finds that there has been no 
prejudice to the veteran.  See Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993).  With respect to the claims for 
increased initial evaluations, "[i]n cases where service 
connection has been granted and an initial disability rating 
and effective date have been assigned, the typical service-
connection claim has been more than substantiated-it has 
been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled."  Dingess/Hartman, 19 
Vet. App. at 491.  With respect to the claim for an increased 
evaluation for Graves disease, there is no prejudice to the 
veteran because the letter informed the veteran that if the 
VA benefits were granted, benefits could be paid from the 
date of the claim or the date the evidence was received, 
dependent upon when the evidence was received and the veteran 
had over 1 year to submit additional evidence after he was 
notified of the assignment of disability evaluations in the 
August 2005 statement of the case (SOC).  See 
Dingess/Hartman, 19 Vet. App. at 492.  

Additionally, with respect to the claim for entitlement to an 
increased evaluation for Graves disease, the June 2004 letter 
did not notify the veteran of the specific requirements to 
obtain a higher rating under the applicable diagnostic code, 
but informed the veteran that he must submit or request that 
VA obtain evidence that showed the worsening of his 
disability and notified him of the type of evidence available 
to show such worsening.  Vazquez-Flores v. Peake, 22 Vet. 
App. 37, 43-44 (2008).  The Board finds no prejudice to the 
veteran because the essential fairness of the adjudication 
has not been affected because the veteran demonstrated actual 
knowledge of the specific criteria contained in the 
applicable diagnostic code.  Vazquez-Flores, 22 Vet. App. at 
46 (noting that there is no prejudicial error where the 
veteran has demonstrated actual knowledge of a notice 
element).  In the August 2005 SOC, the veteran was notified 
of the requirements for an increased evaluation under the 
applicable diagnostic code for Graves disease.  In the 
veteran's August 2005 substantive appeal, the veteran 
reported one of the symptoms required for an increased 
evaluation and stated that he had not conveyed this to the VA 
examiner because it had been too embarrassing.  Accordingly, 
any notice error was not prejudicial.

The letter also requested that the veteran provide any 
evidence in his possession that pertained to these claims.  
38 C.F.R. § 3.159(b)(1).  Further, the purpose behind the 
notice requirement has been satisfied because the veteran has 
been afforded a meaningful opportunity to participate 
effectively in the processing of his claims, to include the 
opportunity to present pertinent evidence.  Simmons v. 
Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. 
Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that 
although VCAA notice errors are presumed prejudicial, 
reversal is not required if VA can demonstrate that the error 
did not affect the essential fairness of the adjudication).   

The veteran's service medical records, VA medical treatment 
records, and VA examination reports have been obtained.  38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In his August 2005 
substantive appeal, the veteran stated that the RO had not 
considered the 38 pages of evidence he had sent in that were 
date stamped June 2, 2005.  In an April 2006 letter, the RO 
stated that it had not received the evidence and that the 
veteran should advise the RO if there was any additional 
evidence pertinent to his claims on appeal.  The veteran did 
not respond or provide any additional information.  See Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the 
duty to assist is not always a one-way street, and that the 
veteran cannot passively wait for help where he may or should 
have information that is essential in obtaining evidence).  
The Board notes, however, that additional service medical 
records were received on June 2, 2005.  There is no 
indication in the record that additional evidence relevant to 
the issues decided herein is available and not part of the 
claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  As there is no indication that any failure on the 
part of VA to provide additional notice or assistance 
reasonably affects the outcome of this case, the Board finds 
that any such failure is harmless.  See Mayfield v. 
Nicholson, 20 Vet. App. 537, 542-43 (2006); see also 
Dingess/Hartman, 19 Vet. App. 473.

Claims to reopen

In an April 1990 rating decision, the RO denied service 
connection for a spine disorder because it was a congenital 
deformity for which service connection could not be granted.  
Service connection for a right arm disorder was also denied 
because there was no current diagnosis of a disability, and 
service connection for a left hand disorder was denied 
because such disability was not shown in service.  The 
veteran did not file a notice of disagreement.  The RO 
decision is final based on the evidence then of record.  See 
38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2007).  In May 2004, 
the veteran filed a claim to reopen his claims of entitlement 
to service connection.  In a May 2005 rating decision, the RO 
did not find new and material evidence to reopen the 
veteran's claims because the evidence submitted was not new 
and did not raise a reasonable possibility of substantiating 
the claim.

Although a decision is final, a claim will be reopened if new 
and material evidence is presented.  38 U.S.C.A. § 5108.  
Where the new and material evidence consists of service 
department records, the prior decision will be reconsidered.  
38 C.F.R. § 3.156(c).

If new and material evidence is presented with respect to a 
claim which has been disallowed, the Board shall reopen the 
claim and review the former disposition of the claim.  38 
U.S.C.A. § 5108.  But if the RO did not reopen and consider 
the claim on a direct basis, then the Board must consider 
whether the veteran has been provided adequate notice and 
opportunity of the need to submit evidence and argument on 
the issue and, if not, whether the veteran has been 
prejudiced by lack of such notice.  Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993).

In this case, the RO determined that new and material 
evidence was not presented to reopen the veteran's claims for 
entitlement to service connection for a spine disorder, a 
right arm disorder, and a left hand disorder.  Such a 
determination, however, is not binding on the Board, and the 
Board must first decide whether new and material evidence has 
been received to reopen the claim.  Barnett v. Brown, 83 F.3d 
1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. 
App. 239, 244 (1993) (holding that Board reopening is 
unlawful when new and material evidence has not been 
submitted).  Because the April 1990 rating decision is the 
last final disallowance, the Board must review all of the 
evidence submitted since that action to determine whether the 
veteran's claim for service connection should be reopened and 
re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet. 
App. 273, 282-83 (1996).  


Evidence of record at the time of the April 1990 rating 
decision includes service medical records, which contained 
complaints of back pain, diagnoses of dorsal, lumbar, and 
thoracic spine scoliosis and rotoscoliosis, a left thumb 
injury, and negative upper extremity examinations. 

Evidence submitted after the April 1990 rating decision 
includes additional service medical records not already of 
file, including the service entrance examination which noted 
scoliosis.  The other service records indicate reports of 
back pain, a non-displaced fracture of the left distal ulna 
that was placed in a short arm cast, abrasions of the left 
hand, and a limited duty profile due to a fracture of the 
left arm.  Also newly submitted were VA medical records from 
September 2000 to June 2004, which contained evidence of 
lumbosacral spine degenerative changes, dextrorotary 
scoliosis of the thoracolumbar spine with degenerative 
changes, and a right forearm muscle cramp.

The Board finds that new and material evidence with respect 
to each claim has been submitted because the evidence 
consisted of service department records that were not 
previously of record.  38 C.F.R. § 3.156(c).  Accordingly, 
the veteran's claims for entitlement to service connection 
for a spine disorder, a left hand disorder, and a right arm 
disorder, are reopened.  

The Board has also determined that to avoid prejudice to the 
veteran, the claims must be remanded.  Bernard, 4 Vet. App. 
at 394.  First, the claim for entitlement to service 
connection for a spine disorder must be remanded because the 
veteran did not receive notice of the ability to obtain 
service connection for a congenital disorder where there is a 
superimposed disease or injury.  See 38 C.F.R. § 4.9 (2007) 
(noting that congenital or developmental defects are not 
diseases or injuries for disability compensation purposes); 
VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (noting that 
service connection may not be granted for congenital or 
developmental defects unless the defect was subject to a 
superimposed disease or injury).  Second, the claims for 
entitlement to service connection for a right arm disorder 
and a left hand disorder must be remanded to avoid prejudice 
to the veteran.  Bernard, 4 Vet. App. at 394.  Although the 
veteran received notice of the information and evidence 
required for the submission of new and material evidence and 
to substantiate a service connection claim, the veteran's 
statements of record indicate that his arguments were based 
on the issue of submission of new and material evidence.  
Accordingly, in order to afford the veteran the opportunity 
to make additional argument and submit any additional 
evidence, remand is required.

Increased evaluations

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities 
(Schedule), found in 38 C.F.R. Part 4 (2007).  The Schedule 
is primarily a guide in the evaluation of disability 
resulting from all types of diseases and injuries encountered 
as a result of or incident to military service.  The ratings 
are intended to compensate, as far as can practicably be 
determined, the average impairment of earning capacity 
resulting from such diseases and injuries and their residual 
conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 
C.F.R. § 4.1 (2007).  In resolving this factual issue, the 
Board may only consider the specific factors as are 
enumerated in the applicable rating criteria.  See Massey v. 
Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 
Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential 
to trace the medical history of the veteran.  38 C.F.R. §§ 
4.1, 4.2, 4.41 (2007).  Consideration of the whole recorded 
history is necessary so that a rating may accurately reflect 
the elements of disability present.  38 C.F.R. § 4.2; Peyton 
v. Derwinski, 1 Vet. App. 282 (1991).  Although the 
regulations do not give past medical reports precedence over 
current findings, the Board is to consider the veteran's 
medical history in determining the applicability of a higher 
rating for the entire period in which the appeal has been 
pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where an increase in the disability rating is at issue, the 
present level of the veteran's disability is the primary 
concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The 
Board notes, however, that this rule does not apply to the 
claims for increased initial evaluations for right and left 
knee disorders, because those appeals are based on the 
assignment of an initial rating for a disability following an 
initial award of service connection.  Fenderson v. West, 12 
Vet. App. 119, 126 (1999).  Instead, evidence contemporaneous 
with the claim and the initial rating decision are most 
probative of the degree of disability existing when the 
initial rating was assigned and should be the evidence "used 
to decide whether an original rating on appeal was 
erroneous."  Fenderson, 12 Vet. App. at 126.  If later 
evidence indicates that the degree of disability increased or 
decreased following the assignment of the initial rating, 
"staged" ratings may be assigned for separate periods of 
time.  Fenderson, 12 Vet. App. at 126; see also Hart v. 
Mansfield, 21 Vet. App. 505 (2007) (noting that staged 
ratings are appropriate whenever the factual findings show 
distinct time periods in which a disability exhibits symptoms 
that warrant different ratings).

By an April 1990 rating decision, service connection for 
Graves disease was granted and a noncompensable evaluation 
was assigned under 38 C.F.R. § 4.119, Diagnostic Code 7903, 
effective April 1, 1990.  In May 2004, the veteran filed a 
claim for entitlement to a compensable evaluation.  By a May 
2005 rating decision, the RO granted a 10 percent evaluation 
under Diagnostic Code 7903, effective May 3, 2004.  The RO 
also granted service connection for right and left knee 
disorders and assigned 10 percent evaluations under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5260-5010, effective May 3, 2004.  
In June 2005, the veteran filed a notice of disagreement 
regarding the disability evaluations.  In August 2005, the RO 
issued a SOC.  That same month, the veteran filed a 
substantive appeal.  

Graves disease

In a March 2005 VA examination, the veteran reported that he 
was not taking any thyroid replacement medication and denied 
significant symptoms, although he reported fatigue, cold 
intolerance, and a 15 pound weight gain over the past several 
years.  He denied any significant constipation.  Upon 
examination, the assessment was history of Graves' disease 
without significant residuals.  

In a June 2005 statement, the veteran asserted that he was 
constantly tired, did not feel well most of the time, and 
that his disorder interfered with his job.  In his August 
2005 substantive appeal, the veteran reported that he was 
always tired and did not report his bowel problems at the 
examination because it was embarrassing.


The veteran's current 10 percent evaluation for Graves 
disease contemplates hypothyroidism manifested by 
fatigability or continuous medication required for control.  
See 38 C.F.R. § 4.119, Diagnostic Code 7903.  A 30 percent 
evaluation is assigned for hypothyroidism manifested by 
fatigability, constipation, and mental sluggishness, a 60 
percent evaluation is assigned for muscular weakness, mental 
disturbance, and weight gain, and a 100 percent evaluation is 
assigned for cold intolerance, muscular weakness, 
cardiovascular involvement, mental disturbance (dementia, 
slowing of thought, depression), bradycardia (less than 60 
beats per minute), and sleepiness.  38 C.F.R. § 4.119, 
Diagnostic Code 7903.  

Here, the veteran reported that he has fatigability and 
constipation.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) 
(holding that a lay witness is competent to testify to that 
which the witness has actually observed and is within the 
realm of his personal knowledge).  Although the veteran did 
not report, and the objective evidence of record does not 
show, mental sluggishness, the veteran's symptoms more 
closely approximate the requirement for a 30 percent 
evaluation than a 10 percent evaluation.  38 C.F.R. § 4.7 
(2007) (noting that 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).  Accordingly, and 
resolving all reasonable doubt in favor of the veteran, a 30 
percent evaluation for Graves disease is warranted.  Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990).  A 60 percent 
evaluation, however, is not warranted as the evidence of 
record does not indicate muscular weakness or mental 
disturbance.  

The Board has considered other potentially applicable 
diagnostic codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 
595 (1991).  But the evidence of record does not demonstrate 
hyperthyroidism, toxic or nontoxic adenoma of the thyroid 
gland, hyperparathyroidism, hypoparathyroidism, Cushing's 
syndrome, acromegaly, diabetes insipidus, Addison's disease, 
Pluriglandular syndrome, diabetes mellitus, benign or 
malignant neoplasm of the endocrine system, hyperpituitarism, 
phyerpaldosteronism, pheochromocytoma, or C-cell hyperplasia 
of the thyroid.  38 C.F.R. § 4.119, Diagnostic Codes 7900-
7902, 7904-7919 (2007).  Accordingly, alternate diagnostic 
codes do not provide for an evaluation in excess of 30 
percent.

After review of the evidence, there is no evidence of record 
that would warrant a rating in excess of 30 percent for 
Graves disease at any time during the period pertinent to 
this appeal.  38 U.S.C.A. 5110 (West 2002 & Supp. 2007); see 
also Hart, 21 Vet. App. 505.

Right and left knee disorders

In a March 2005 VA examination, the veteran reported 
bilateral knee pain that was 7/10 in severity.  He reported 
weakness, stiffness, heat, instability, locking, and lack of 
endurance, but denied swelling.  The veteran was currently 
taking over the counter and prescription medication, which 
helped with the pain.  He did not use crutches, cane or 
brace.  The knee pain affected his ability to go up and down 
stairs and caused difficulty with prolonged standing or 
walking.  The veteran denied knee dislocation, recurrent 
subluxation, and symptoms of inflammatory arthritis.  Upon 
examination, there was bilateral knee extension to 0 degrees 
and flexion to 140 degrees with pain at 140 degrees.  There 
was slight crepitus upon palpation of the patella and 
tenderness on the medial and lateral joint line.  There was 
no ligamentous laxity and negative Lachman's and McMurray's 
tests.  The assessment was bilateral knee degenerative joint 
disease.  

In a June 2005 statement, the veteran stated that his right 
knee gave way 3 times per week and constant bilateral knee 
pain of 7/10.  In his August 2005 substantive appeal, the 
veteran reported that at the end of his workday he could not 
climb stairs due to pain that steadily worsened over the 
course of the day.  In a May 2006 statement, the veteran 
asserted that he had bilateral knee give-way 3 to 4 times per 
month.  He reported pain and stiffness extending to his feet 
and hips that was worse upon prolonged standing.  

The hyphenated code indicates that the right and left knee 
disorders include both traumatic arthritis, Diagnostic Code 
5010, and limitation of flexion of the leg, Diagnostic Code 
5260.  38 C.F.R. § 4.27 (2007).  The veteran's 10 percent 
evaluations contemplate knee arthritis without compensable 
limitation of knee motion.  See 38 C.F.R. § 4.71a, Diagnostic 
Codes 5003, 5010, 5260 (2007). 

Traumatic arthritis is rated as degenerative arthritis.  38 
C.F.R. § 4.71a, Diagnostic Code 5010.  Degenerative arthritis 
established by x-ray findings will be rated on the basis of 
limitation of motion under the appropriate diagnostic codes 
for the specific joint or joints involved.  38 C.F.R. § 
4.71a, Diagnostic Code 5003.  Limitation of motion must be 
objectively confirmed by findings such as swelling, muscle 
spasm or satisfactory evidence of painful motion.  When the 
limitation of motion of the specific joint or joints involved 
is noncompensable under the appropriate diagnostic codes, an 
evaluation of 10 percent is applied for each major joint or 
group of minor joints affected by limitation of motion.  In 
the absence of limitation of motion, a 10 percent evaluation 
will be assigned where there is x-ray evidence of involvement 
of two or more major joints or two or more minor joint 
groups.  A 20 percent evaluation will be assigned where there 
is x-ray evidence of involvement of two or more major joints 
or two or more minor joint groups and there are occasional 
incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic 
Code 5003.  

For limitation of leg flexion, 20 and 30 percent evaluations 
are assigned for flexion limited to 30 and 15 degrees, 
respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  For 
limitation of leg extension, 20, 30, 40, and 50 percent 
evaluations are assigned for leg extension limited to 15, 20, 
30, and 45 degrees, respectively.  38 C.F.R. § 4.71a, 
Diagnostic Code 5261 (2007); see also 38 C.F.R. § 4.71, Plate 
II (2007) (showing normal leg flexion and extension as 
between 0 degrees and 140 degrees).  Here, the objective 
medical evidence of record indicates bilateral knee 
degenerative changes with full extension and flexion.  There 
was no evidence of involvement of two or more major joints or 
two or more minor joint groups with occasional incapacitating 
exacerbations.  Accordingly, initial evaluations in excess of 
10 percent for a right knee disorder and a left knee disorder 
are not warranted. 

The Board has considered other potentially applicable 
diagnostic codes.  Schafrath, 1 Vet. App. at 595.  But the 
evidence of record does not demonstrate right or left knee 
ankylosis, recurrent subluxations or instability, dislocation 
or removal of semilunar cartilage, impairment of the tibia or 
fibula, or genu recurvatum.  38 C.F.R. § 4.71a, Diagnostic 
Codes 5256-59, 5262-63 (2007).  Accordingly, evaluations in 
excess of 10 percent are not warranted under alternative 
diagnostic codes.  


Moreover, because the objective evidence of record 
demonstrates no instability of the bilateral knees, separate 
evaluations are not warranted for both arthritis and 
instability.  See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) 
(arthritis and instability of the knee may be rated 
separately under Diagnostic Codes 5003 and 5257, provided 
that any separate rating is based upon additional 
disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a 
veteran has a disability rating under Diagnostic Code 5257 
for instability of the knee, and there is x-ray evidence of 
arthritis, a separate rating for arthritis could also be 
based on painful motion under 38 C.F.R. § 4.59).  

The Board has also considered whether there is any additional 
functional loss not contemplated in the current 10 percent 
ratings.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2007); see also 
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Factors 
involved in evaluating and rating disabilities of the joints 
include:  weakness; fatigability; lack of coordination; 
restricted or excess movement of the joint; or, pain on 
movement.  38 C.F.R. § 4.45 (2007).  The veteran reported 
bilateral knee pain that was 7/10 in severity.  He reported 
weakness, stiffness, heat, instability, locking, and lack of 
endurance, but denied swelling, dislocation, and subluxation.  
The veteran reported give-way either 3 times per week or 3 to 
4 times per month.  He took medication, which helped with the 
pain.  He did not use crutches, cane or brace.  He reported 
that the knee pain affected his ability to go up and down 
stairs and caused difficulty with prolonged standing or 
walking.  The objective evidence of record found pain at the 
end range of motion but no additional limitation of motion 
was noted due to pain.  There was slight crepitus and 
tenderness but no ligamentous laxity and negative Lachman's 
and McMurray's testing.  Although the veteran reported 
functional limitation due to pain, knee pain was not shown to 
limit movement to a compensable degree.  There was no knee 
instability and no use of braces or canes.  The Board finds 
that there is no additional functional loss not contemplated 
in the 10 percent ratings and that increased evaluations on 
this basis are not warranted.  

After review of the evidence, there is no evidence of record 
that would warrant a rating in excess of 10 percent for a 
right or left knee disorder at any time during the period 
pertinent to this appeal.  38 U.S.C.A. 5110; see also Hart, 
21 Vet. App. 505.


Other considerations

In exceptional cases where schedular evaluations are found to 
be inadequate, the RO may refer a claim to the Chief Benefits 
Director or the Director, Compensation and Pension Service, 
for consideration of "an extra-schedular evaluation 
commensurate with the average earning capacity impairment due 
exclusively to the service-connected disability or 
disabilities."  38 C.F.R. § 3.321(b)(1) (2007).  "The 
governing norm in these exceptional cases is:  A finding that 
the case presents such an exceptional or unusual disability 
picture with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards."  Floyd v. Brown, 9 Vet. App. 88 (1996).  In this 
regard, the schedular evaluations in this case are not 
inadequate.  A rating in excess of 30 percent is provided for 
certain manifestations of Graves disease and 10 percent 
evaluations are provided for certain manifestations of the 
knee disorders, but the medical evidence reflects that those 
manifestations are not present in this case.  Moreover, the 
Board finds no evidence of an exceptional disability picture.  
The veteran has not required hospitalization and marked 
interference of employment has not been shown due to Graves 
disease or right and left knee disorders.  In the absence of 
any additional factors, the RO's failure to refer this issue 
for consideration of an extraschedular rating did not 
prejudice the veteran.

In reaching these decisions the Board considered the doctrine 
of reasonable doubt, however, as the preponderance of the 
evidence is against the veteran's claims, the doctrine is not 
for application.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

New and material evidence having been received, the claim for 
entitlement to service connection for a spine disorder is 
reopened; the claim is granted to this extent only.

New and material evidence having been received, the claim for 
entitlement to service connection for a right arm disorder is 
reopened; the claim is granted to this extent only.

New and material evidence having been received, the claim for 
entitlement to service connection for a left hand disorder is 
reopened; the claim is granted to this extent only.

A rating of 30 percent, but no more, for Graves disease is 
granted, subject to the laws and regulations governing the 
payment of monetary benefits.

An initial evaluation in excess of 10 percent for a right 
knee disorder is denied.

An initial evaluation in excess of 10 percent for a left knee 
disorder is denied.


REMAND

With respect to the reopened claims, the Board finds that, as 
noted above, remand is required for additional development 
and adjudication on a direct basis, in order to avoid 
prejudice to the veteran.  Bernard, 4 Vet. App. at 394 
(holding that where RO has not considered the reopened claim 
on a direct basis, the Board must consider whether prejudice 
to the veteran if it proceeded to adjudicate the merits of 
the claim). 

With respect to the claim of entitlement to an initial 
compensable evaluation for a right elbow disorder, the appeal 
must be remanded for an examination.  VA's duty to assist 
includes providing a new medical examination when a veteran 
asserts or provides evidence that a disability has worsened 
and the available evidence is too old for an adequate 
evaluation of the current condition.  See Weggenmann v. 
Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. 
§ 3.326 (a) (2007).  The most recent VA examination of record 
was in March 2005.  In June 2005 the veteran reported that 
his right elbow disorder caused right arm and hand tingling 
and locking.  Because the objective findings regarding the 
elbow are over 3 years old and the extent of the veteran's 
right elbow symptomatology is unclear, the RO must provide 
the veteran with a current examination. 

Accordingly, the case is remanded for the following action:

1.  The RO must provide notice as required 
by Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  

2.  The RO must schedule the veteran for a 
VA examination to determine the current 
severity of his service-connected right 
elbow disorder.  The VA claims file must 
be made available to and reviewed by the 
examiner in conjunction with the 
examination.  All indicated tests and 
studies, to include range of motion 
testing of the right elbow, expressed in 
degrees, with standard ranges provided for 
comparison purposes, must be accomplished, 
and all clinical findings must be reported 
in detail and correlated to a specific 
diagnosis.  The examiner must describe all 
symptomatology due to the veteran's 
service-connected right elbow disorder, to 
include whether there is any instability, 
weakness, fatigability, incoordination, or 
flare-ups.  The examiner must determine 
whether the veteran's right elbow disorder 
causes any right arm or right hand 
symptomatology, to include any 
neurological involvement.  The examiner 
must provide an opinion on the impact of 
the service-connected disability on the 
veteran's ability to work, as well as any 
resultant limitation of function of the 
right elbow.  With respect to any 
subjective complaints of pain, the 
examiner is requested to specifically 
comment on whether pain is visibly 
manifested on movement of the right elbow, 
the presence and degree of, or absence of, 
muscle atrophy attributable to the 
service-connected right elbow, the 
presence or absence of changes in 
condition of the skin indicative of disuse 
due to the service-connected right elbow, 
or the presence or absence of any other 
objective manifestation that would 
demonstrate disuse or functional 
impairment due to pain attributable to the 
service-connected right elbow.  The 
rationale for each opinion expressed must 
also be provided.  The report prepared 
must be typed.

3.  The RO must notify the veteran that it 
is his responsibility to report for any 
scheduled examination and to cooperate in 
the development of the claim, and that the 
consequences for failure to report for a 
VA examination without good cause may 
include denial of the claim.  38 C.F.R. §§ 
3.158, 3.655 (2007).  In the event that 
the veteran does not report for any 
scheduled examination, documentation must 
be obtained which shows that notice 
scheduling the examination was sent to the 
last known address.  It must also be 
indicated whether any notice that was sent 
was returned as undeliverable.

4.  The examination report must be 
reviewed to ensure that it is in complete 
compliance with the directives of this 
remand.  If the report is deficient in any 
manner, the RO must implement corrective 
procedures.

5.  After completing the above action, and 
any other development as may be indicated 
by any response received as a consequence 
of the actions taken in the paragraphs 
above, the claims for entitlement to 
service connection for a spinal disorder, 
a right arm disorder, and a left hand 
disorder, and claim for an initial 
compensable evaluation for a right elbow 
disorder must be readjudicated.  If the 
claims remain denied, a supplemental 
statement of the case must be provided to 
the veteran and his representative.  After 
the veteran and his representative have 
had an adequate opportunity to respond, 
the appeal must be returned to the Board 
for appellate review.

No action is required by the veteran until he receives 
further notice; however, he may present additional evidence 
or argument while the case is in remand status at the RO.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs