Citation Nr: 1005000 Decision Date: 02/03/10 Archive Date: 02/18/10 DOCKET NO. 07-24 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for right foot bunion, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability rating for left foot bunion, currently evaluated as 10 percent disabling. 3. Entitlement to an increased disability rating for left knee chondromalacia patella, currently evaluated as 10 percent disabling. 4. Entitlement to an increased disability rating for right knee traumatic arthritis, currently evaluated at 10 percent disabling. 5. Entitlement to service connection for gout, to include as secondary to the Veteran's service connected right and left foot bunion disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1982 to August 1986 and November 1986 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and January 2008 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Notices of disagreement were received in November 2006 and February 2008, statements of the case were issued in June 2007 and November 2008, and substantive appeals were received in June 2007 and January 2009. The Veteran testified at a Board hearing at the RO in April 2009. The issue of entitlement to service connection for gout 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. In addition, the Board notes that during the April 2009 hearing the Veteran raised the issue of entitlement to service connection for a torn Achilles tendon, to include as secondary to the Veteran's service-connected right and left foot bunion disabilities. The Board therefore refers the issue of a torn Achilles tendon back to the RO for development and adjudication. FINDINGS OF FACT 1. The Veteran's right foot bunion is currently rated at the highest possible scheduler rating and it does not present an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization to require an extraschedular consideration. 2. The Veteran's left foot bunion is currently rated at the highest possible scheduler rating and it does not present an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization to require an extraschedular consideration. 3. The Veteran's left chondromalacia patella is not manifested by ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, limitation of flexion to 30 degrees, or any limitation of extension. 4. The Veteran's right knee traumatic arthritis is not manifested by ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, limitation of flexion to 30 degrees, or any limitation of extension. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating for right foot bunion in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5280 (2009). 2. The criteria for an increased disability rating for left foot bunion in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5280 (2009). 3. The criteria for an increased disability rating for left chondromalacia patella in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2009). 4. The criteria for an increased disability rating for right knee traumatic arthritis in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that through VCAA letters dated August 2006, December 2006, September 2007, and May 2008 the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The United States Court of Appeals for Veterans Claims decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that 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 decision on a claim for VA benefits. The VCAA letter to the appellant was provided in August 2006 prior to the initial unfavorable decision in November 2006. The United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) purported to clarify VA's notice obligations in increased rating claims. The Court held that a notice letter must inform the Veteran that, to substantiate a claim, he or she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court also held that where the claimant is rated under a diagnostic code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life, the notice letter must provide at least general notice of that requirement. The Board points out that the U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). Reviewing the May 2008 correspondence in light of the Federal Circuit's decision, the Board finds that the Veteran has received 38 U.S.C.A. § 5103(a)-compliant notice as to his increased rating claim. Although some of the notices did not precede the initial adjudications of the Veteran's claims, the later notices were followed by a subsequent readjudication, in this case a supplemental statement of the case issued in March 2009, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded VA examinations in September 2006, November 2006, and January 2008. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the claims file was reviewed by some of the examiners and the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal. Analysis The present appeal involves the Veteran's claim that the severity of his service-connected right foot bunion, left foot bunion, left knee chondromalacia patella, and right knee traumatic arthritis warrants higher disability ratings. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The standards set forth in DeLuca and 38 C.F.R. § 4.45 are considered in the analysis of the issues below. Right Foot Bunion The Veteran's service-connected right foot bunion has been rated by the RO under the provisions of Diagnostic Code 5280 for unilateral hallux valgus. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under this regulatory provision, unilateral hallux valgus warrants a 10 percent disability rating if operated with resection of metatarsal head or if severe and equivalent to the amputation of the great toe. The Veteran was afforded a VA examination of the feet in September 2006. The examiner noted that the Veteran developed progressive hallux valgus deformity affecting the right big toe while in service and underwent corrective surgery in February 2006. The Veteran complained of a dull ache with sharp exacerbations affecting the right big toe, aggravated by any attempt at dorsiflexion or walking for prolonged distances. The intensity of the pain was noted at 8-10 on a scale of 1 to 10. The Veteran used corrective shoes. Upon examination, the right big toe showed a windlast phenomenon affecting the axis of the right big toe with fibular rotation (to the outside of the foot). The Veteran had significantly pronated feet (pes planus). The Veteran's range of motion of the right big toe is painful on passive range of motion or any attempt at active range of motion. Range of motion was noted as 0 degrees dorsiflexion and 20 degrees plantar flexion. The examiner noted no breaking down, no callus formation, no vascular changes, and no skin changes. He also noted no hammertoe or clawfoot deformities. He reported alignment of Achilles tendon at the insertion at the os calcis 2 degrees of valgus deformity. The examiner diagnosed residual from recent hallux valgus deformity correction and right pes planus deformity. The Veteran was afforded another VA examination in November 2006. The Veteran has continued to complain of pain and discomfort. The Veteran used over the counter medication and corrective shoes to prevent and alleviate pain. Physical examination revealed pronated attitude (pes planus). The examiner noted no breaking down, no callus formation, no vascular changes, and no skin changes. He also noted no hammertoe or clawfoot deformities. He again reported alignment of Achilles tendon at the insertion at the os calcis 2 degrees of valgus deformity. In January 2008, the Veteran was afforded a VA examination in relation to his claim of service connection for gout. Although not provided for the purpose of an increased rating claim, a full examination of the foot was provided. The Veteran reported pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance in the metatarsal heads, first metatarsophalangeal joint. The examiner noted flare ups of foot joint disease about every two months lasting seven to ten days. During a flare-up the Veteran can't walk or put any pressure on his feet. During physical examination, the examiner noted painful motion, tenderness, and callouses at metatarsal heads. He noted no objective evidence of swelling, instability, or weakness. He also noted no abnormal weight bearing, hammertoes, hallux valgus or rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy of the foot, or other foot deformity. The examiner reported that the Veteran had a slight limp favoring left leg. In an April 2009 hearing, the Veteran noted that his toes don't touch the ground. He claimed that he cannot use his big toe at all. As seen above, the rating criteria under Diagnostic Code 5280 does not provide for a rating greater than 10 percent disabling. The Veteran is already rated at 10 percent disabling. The Board also considered other possible applicable diagnostic codes, but the VA examiner specifically noted that the Veteran did not have weak foot, claw foot, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. In addition, the Veteran was denied service connection for bilateral pes planus in a November 2004 rating decision. As that issue is not before the Board, the diagnostic code for pes planus is also not applicable. As such, no other diagnostic code is applicable and no greater disability rating may be afforded under the current diagnostic code. The Board acknowledges that the Veteran feels that his disability has been rated under the wrong diagnostic code; however, the Board has considered all potentially applicable diagnostic codes and finds that the current diagnostic code is appropriate. The Board addresses the issue of an extraschedular evaluation below. Left Foot Bunion The Veteran's service-connected left foot bunion has also been rated by the RO under the provisions of Diagnostic Code 5280 for unilateral hallux valgus. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Again, under this regulatory provision, unilateral hallux valgus warrants a 10 percent disability rating if operated with resection of metatarsal head or if severe and equivalent to the amputation of the great toe. In the November 2006 VA examination, the Veteran noted that he had aggravated pain in the left foot metatarsophalangeal joints where he had developed callus formation underneath the head of the first metatarsal bone due to favoring his right big toe. Walking on the left foot caused him pain. The pain was aggravated by prolonged standing or ambulation and relieved by rest and foot elevation. He noted over the counter medication and corrective shoes to try and diminish the pain. Upon physical examination, the examiner noted plantar keratosis at the level of the metatarsophalangeal joint, which was painful to palpation and compression. It had been affecting the sesamoid bone. The examiner explained that clinically, the presence of the callus formation created a sesamoiditis. Examination revealed pronated attitude (pes planus) and range of motion of dorsiflexion to 20 degrees with pain and plantar flexion to 30 degrees with pain. Repetitive action of flexion and extension of the left big toe was met with increased pain, fatigue, weakness, and lack of endurance, no decrease in limited range of motion. The examiner diagnosed left foot plantar keratosis and clinical sesamoiditis affecting first metatarsophalangeal joint, left foot, and left pes planus deformity. A January 2007 private medical record showed bone pain in the foot. The examiner noted that the feet showed abnormal in appearance. The left great toe was deviated medially slightly. The examiner diagnosed bunion left foot. In March 2007, the Veteran underwent a modified McBride bunionectomy with tibial sesamoid excision of the left foot. The post operative diagnosis was mild bunion deformity of the left foot and hypertrophic bipartite tibial sesamoid of the left foot. In the January 2008 VA examination, the Veteran reported pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance of the metatarsal heads, first metatarsophalangeal joint. Upon physical examination, the examiner noted painful motion and tenderness. He found no objective evidence of swelling, instability, weakness, or abnormal weight bearing. The examiner also noted no hammertoes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy, or other foot deformity. He did find callouses at metatarsal heads. Again, in an April 2009 hearing, the Veteran noted that his toes don't touch the ground. He claimed that he cannot use his big toe at all. As seen in the above section addressing the right foot bunion, the rating criteria under Diagnostic Code 5280 does not provide for a rating greater than 10 percent disabling. The Veteran is already rated at 10 percent disabling for his left foot bunion. The Board again also considered other possible applicable diagnostic codes, but the VA examiner specifically noted that the Veteran did not have weak foot, claw foot, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones in his left foot either. In addition, the Veteran was denied service connection for bilateral pes planus in a November 2004 rating decision. As that issue is not before the Board, the diagnostic code for pes planus is also not applicable. Again, no other diagnostic code is applicable and no greater disability rating may be afforded under the current diagnostic code. The Board acknowledges that the Veteran feels that his disability has been rated under the wrong diagnostic code; however, the Board has considered all potentially applicable diagnostic codes and finds that the current diagnostic code is appropriate. The Board addresses the issue of an extraschedular evaluation below. Left Knee Chondromalacia Patella The Veteran's service-connected left chondromalacia patella was originally rated by the RO under the provisions of Diagnostic Code 5014 for osteomalacia, which indicates that the disease should be rated on limitation of motion of the affected parts. The RO subsequently noted that the disability was rated under Diagnostic Code 5261 for limitation of extension of the leg; however, the evidence below shows no limitation of extension of the leg, but does show limitation of flexion of the leg. Therefore, it would appear that the Veteran would be rated under Diagnostic Code 5260 for limitation of flexion. In any event, multiple diagnostic codes may be applicable relating to the Veteran's knee. As such, the Board sets forth and considers all potential diagnostic codes. Under Diagnostic Code 5256, ankylosis of the knee is rated at 60 percent disabling when extremely unfavorable, in flexion at an angle of 45 degrees or more, at 50 percent disabling when in flexion between 40 and 45 degrees, at 40 percent disabling when in flexion between 10 and 20 degrees, and at 30 percent disabling when favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5257, impairment of the knee is rated at 30 percent disabling for severe recurrent subluxation or lateral instability, at 20 percent disabling for moderate recurrent subluxation or lateral instability, and at 10 percent disabling for slight recurrent subluxation or lateral instability. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is rated at 20 percent disabling. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent disability rating. Under Diagnostic Code 5260, the limitation of flexion of the leg to 15 degrees warrants a 30 percent disability rating, to 30 degrees warrants a 20 percent disability rating, to 45 degrees warrants a 10 percent disability rating, and to 60 degrees warrants a noncompensable disability rating. Under Diagnostic Code 5261, the limitation of extension of the leg to 45 degrees warrants a 50 percent disability rating, to 30 degrees warrants a 40 percent disability rating, to 20 degrees warrants a 30 percent disability rating, to 15 degrees warrants a 20 percent disability rating, to 10 degrees warrants a 10 percent disability rating, and to 5 degrees warrants a noncompensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-61. The Veteran was afforded a VA examination of the joints in September 2006. The Veteran noted that the knee pain is aggravated by keeping the knee at flexion and relieved by keeping the knee in extension. The intensity of the pain in the left knee was a 7 out of 10, but goes up to a level 10 as often as every day. The range of motion of the left knee goes from 0 degrees of extension to 140 degrees of flexion with pain, but without crepitation. The repetitive action of flexion and extension was met with increased pain, fatigue, weakness, and lack of endurance, especially affecting the patellofemoral joint, but the range of motion was essentially intact and did not change. Lachman's test and McMurray test were negative bilaterally. The examiner diagnosed the Veteran with chondromalacia patella left knee. The Veteran was afforded a VA examination of the joints in January 2008. The Veteran reported the use of bilateral knee braces and a cane at times. The Veteran reported deformity, giving way, instability, pain, stiffness, weakness, daily episodes of dislocation or subluxation, locking episodes, and repeated effusion. The Veteran also noted flare ups of both knees that cause an inability to walk for seven to ten days every two months. The Veteran's range of motion of the left knee was extension to 0 degrees with no pain and no additional limitation of motion on repetitive use and flexion to 130 degrees with pain beginning at 95 degrees and no additional limitation of motion on repetition. The left knee presented with some crepitation, tenderness, and painful movement, but no clicks, snaps, grinding, instability, patellar abnormality, or meniscus abnormality. X-rays showed no pathology in the left knee. The examiner noted that the Veteran had been employed at a desk job for 15 months, but did note that the Veteran was assigned different duties and experience increased absenteeism. The examiner diagnosed left knee strain. To receive the next higher rating under Diagnostic Codes 5260 or 5261, the evidence must show limitation of extension of the leg to 15 degrees or limitation of flexion of the leg to 30 degrees. The Veteran's extension was measured to 0 degrees with pain in September 2006 and to 0 degrees without pain in January 2008. The Veteran's flexion was measured to 140 degrees with pain in September 2006 and to 130 degrees with pain beginning at 95 degrees in January 2008. As such, a higher disability rating under Diagnostic Code 5260 or 5261 is not warranted. The Board then considers other potentially applicable diagnostic codes. Diagnostic Code 5256 is not applicable as the record fails to show ankylosis of the knee at any point. Diagnostic Code 5257 is also inapplicable as the examiner specifically noted no instability in January 2008 and the record is silent as to any recurrent subluxation. Diagnostic Code 5258 requires dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; however, the evidence again fails to show any dislocated cartilage and locking. Finally, the requirements of Diagnostic Code 5259 are not met as the Veteran has not had removal of semilunar cartilage. In sum, the evidence fails to show entitlement to a rating in excess of 10 percent under any applicable diagnostic codes. Right Knee Traumatic Arthritis The Veteran's service-connected traumatic arthritis right knee has been rated by the RO under the provisions of Diagnostic Code 5010 for traumatic arthritis; however, multiple diagnostic codes may be applicable relating to the Veteran's knee. Diagnostic Code 5010 for Arthritis, due to trauma, substantiated by X-ray findings refers to Diagnostic Code 5003 for degenerative arthritis. Diagnostic Code 5003 states that 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. When the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the Veteran should be rated at 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256-61. Turning to the other possibly applicable diagnostic provisions, under Diagnostic Code 5256, ankylosis of the knee is rated at 60 percent disabling when extremely unfavorable, in flexion at an angle of 45 degrees or more, at 50 percent disabling when in flexion between 40 and 45 degrees, at 40 percent disabling when in flexion between 10 and 20 degrees, and at 30 percent disabling when favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5257, impairment of the knee is rated at 30 percent disabling for severe recurrent subluxation or lateral instability, at 20 percent disabling for moderate recurrent subluxation or lateral instability, and at 10 percent disabling for slight recurrent subluxation or lateral instability. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint is rated at 20 percent disabling. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent disability rating. Under Diagnostic Code 5260, the limitation of flexion of the leg to 15 degrees warrants a 30 percent disability rating, to 30 degrees warrants a 20 percent disability rating, to 45 degrees warrants a 10 percent disability rating, and to 60 degrees warrants a noncompensable disability rating. Under Diagnostic Code 5261, the limitation of extension of the leg to 45 degrees warrants a 50 percent disability rating, to 30 degrees warrants a 40 percent disability rating, to 20 degrees warrants a 30 percent disability rating, to 15 degrees warrants a 20 percent disability rating, to 10 degrees warrants a 10 percent disability rating, and to 5 degrees warrants a noncompensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-61. As noted above, the Veteran was afforded a VA examination of the joints in September 2006. The Veteran noted that the knee pain is aggravated by keeping the knee at flexion and relieved by keeping the knee in extension. The intensity of the pain in the right knee also was a 7 out of 10, but goes up to a level 10 as often as every day. The range of motion of the right knee goes from 0 degrees of extension to 140 degrees of flexion with pain and crepitation. Repetitive extension and flexion caused increased pain, fatigue, weakness, and lack of endurance, but no decrease in the range of motion. The Lachman's test and McMurray test were negative. The examiner diagnosed traumatic arthritis of the right knee. In the January 2008 VA examination, the Veteran reported the use of bilateral knee braces and a cane at times. The Veteran reported deformity, giving way, instability, pain, stiffness, weakness, daily episodes of dislocation or subluxation, locking episodes, and repeated effusion. The Veteran also noted flare ups of both knees that cause an inability to walk for seven to ten days every two months. The Veteran's range of motion of the right knee was extension to 0 degrees with no pain and no additional limitation of motion on repetitive use and flexion to 120 degrees with pain beginning at 75 degrees and no additional limitation of motion on repetition. The right knee presented with some crepitation, tenderness, and painful movement, but no clicks, snaps, grinding, instability, patellar abnormality, or meniscus abnormality. X-rays of the right knee showed moderate degenerative changes. The examiner noted that the Veteran has been employed at a desk job for over a year. The examiner diagnosed the Veteran with right knee degenerative arthritis. Again, the Veteran is rating under Diagnostic Code 5010 for traumatic arthritis. Under this regulation, the Veteran's arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion of the knee is rated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, the limitation of flexion of the leg to 45 degrees warrants a 10 percent disability rating and under Diagnostic Code 5261 the limitation of extension of the leg to 10 degrees warrants a 10 percent disability rating. The Veteran's range of motion was measured at extension to 0 degrees with no pain and extension to 120 degrees with pain beginning at 75. At no point does the evidence show limitation of flexion to 45 degrees or limitation of extension to 10 degrees. In the absence of limitation of motion, the regulation provides that the Veteran should be rated at 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. As the right knee is the only joint with arthritis and the Veteran is currently already rated at 10 percent for each knee individually, a 10 percent disability rating is warranted under Diagnostic Code 5010. The Board also considers other potentially applicable diagnostic codes. As with the left knee, the other codes are inapplicable to the Veteran's right knee disability. Diagnostic Code 5256 is not applicable as the record fails to show ankylosis of the knee. Diagnostic Code 5257 is also inapplicable as the examiner specifically noted no instability in January 2008 and the record is silent as to any recurrent subluxation. Diagnostic Code 5258 requires dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; however, the objective evidence again fails to show any dislocated cartilage or locking. Finally, the requirements of Diagnostic Code 5259 are not met as the Veteran has not had removal of semilunar cartilage. A rating in excess of the current 10 percent is not warranted under any applicable diagnostic criteria. Extraschedular Consideration To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board is of the opinion that the Rating Schedule measures and contemplates the demonstrated impairment due to the service-connected disabilities at issue. Accordingly, an extraschedular rating or ratings are not appropriate. ORDER Entitlement to an increased disability rating for left foot bunion, currently evaluated at 10 percent disabling, is not warranted. Entitlement to an increased disability rating for right foot bunion, currently evaluated at 10 percent disabling, is not warranted. Entitlement to an increased disability rating for left chondromalacia patella, currently evaluated at 10 percent disabling, is not warranted. Entitlement to an increased disability rating for right knee traumatic arthritis, currently evaluated at 10 percent disabling, is not warranted. To that extent, the appeal is denied. REMAND Upon preliminary review, the Board finds that further development is necessary regarding the Veteran's claim of service connection for gout before a decision on the merits may be made. The Veteran was afforded a VA examination in January 2008. At that time, the examiner reviewed the claims file and noted that service treatment records are silent for a diagnosis of gout and for increased uric acid levels. The examiner therefore opined that the Veteran's current hyperuricemia and gout were not caused by or a result of his inservice complaints. The Veteran has submitted lab results that evidence increased uric acid in January 2005, within four months of the Veteran's separation from service. The Veteran has testified that his doctor informed him that it takes time to build up that much uric acid and therefore his hyperuricemia and resulting gout began while in service. The Veteran has not submitted any medical evidence to support this statement; however, the Board finds that the Veteran's testimony regarding his doctor's statement, along with his own testimony and that of a fellow service member as to his burning, swelling, and pain during service, requires further consideration. The Board therefore requests that the examiner extend his comments to address the lab results and the Veteran's contention. Accordingly, the case is REMANDED for the following action: 1. If possible, the claims file should be referred to the same examiner who conducted the January 2008 VA examination. The examiner should extend his comments to include an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the gout or hyperuricemia began during service. Specifically, the examiner should provide the opinion in light of the lab results showing increased uric acid within four months of the Veteran's separation from service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. Should it not be possible for the January 2008 VA examiner to review the file, the Veteran should be afforded a new VA examination. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. The examiner is requested to review all pertinent records associated with the claims file, particularly service medical records, and offer comments and an opinion, as to whether any currently diagnosed gout or hyperuricemia is at least as likely as not (a 50% or higher degree of probability) etiologically related to the Veteran's inservice symptomatology. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After completion of the above and any other development the RO should deem necessary, the RO should review the expanded record and determine if service connection for gout is warranted. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise 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. 2009). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs