Citation Nr: 1007136 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-01 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating greater than 20 percent for residuals of a left knee meniscectomy. 2. Entitlement to an initial rating greater than 10 percent for degenerative joint disease (DJD) of the right knee. 3. Entitlement to service connection for headaches, claimed as secondary to medicinal treatment for service-connected bilateral knee pain. 4. Entitlement to service connection for a stomach disability, claimed as secondary to medicinal treatment for service-connected bilateral knee pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1975 to December 1982 and again from April 1985 to October 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 1998, May 2005 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky where (respectively) the RO granted service-connection for a left knee disability and assigned the initial rating, denied service connection for headaches and a stomach disability and granted service connection for a right knee disability and assigned the initial rating. The Veteran had a hearing before the RO in November 2000 and the transcript is of record. The Veteran initially requested a hearing before the Board in January 2007, but subsequently withdrew the request in July 2007. Thereafter, the Veteran's appeal was certified to the Board in March 2009 and the Veteran was notified of certification in a March 2009 letter sent to his last known address. The Veteran had 90 days following the March 2009 mailing of notice to request a hearing, change his representation, or submit additional evidence. 20 C.F.R. § 20.1304. On January 6, 2010, the Veteran indicated he received medical treatment that day and wanted to provide the treatment at his "personal hearing scheduled for 03/2010." He did not identify the condition(s) to be treated. Again, the Veteran withdrew his request for a hearing in July 2007; there is no pending hearing date at the Nashville or Louisville ROs. To the extent the January 2010 statement serves as a request to be afforded a personal hearing and submit additional evidence, the Board concludes the request is untimely as it is clearly outside the 90 day window since certification. Id. The Veteran's left knee claim has a lengthy procedural history. The Veteran originally claimed service connection for his left knee in May 1998. Thereafter, the Veteran was awarded service connection in a September 1998 rating decision and assigned a 10 percent initial rating. The Veteran perfected an appeal of the initial rating to the Board. The left knee rating issue was brought before the Board in July 2003, at which time it was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. During the pendency of this appeal, the Veteran filed other claims as mentioned above, which are also now properly before the Board. During the pendency of this appeal, the Veteran was assigned increased ratings of 20 percent and 10 percent for his left and right knee disabilities, respectively. After the Veteran perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues are still properly before the Board here and are appropriately rephrased above. The service connection issues, to include headaches and a stomach disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's left knee disability is manifested by pain, limitation of motion, x-ray evidence of arthritis and joint effusion. 2. The Veteran's right knee disability is manifested by pain, limitation of motion, and x-ray evidence of arthritis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for residuals of a left knee meniscectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code (DC) 5258 (2009). 2. The criteria for a disability rating greater than 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code (DC) 5003 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in June 1998, April 2001, December 2003, August 2004, October 2007, May 2008 and June 2008. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2007 and 2008 letters, moreover, explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the recent decision in Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008), the Court of Appeals for Veterans Claims (CAVC or "the Court") held that, with respect to increased rating claims, section 5103(a) notice requires, at a minimum, that the Secretary notify the Veteran that, to substantiate a claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in the severity of the disability and the effect the worsening has on the Veteran's employment and daily life. Notice may also need to include the specific Diagnostic Code under which the Veteran is rated if entitlement to a higher disability rating would not be satisfied by the Veteran demonstrating a noticeable worsening or increase in severity of the disability. This decision was recently vacated by the Federal Circuit in Vazquez-Flores v. Shinseki, Nos. 2008-7150 & 2008-7115, slip op. at 19 (Fed. Cir. Sept. 4, 2009), vacating Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), where the Federal Circuit held that notice need not be veteran specific, provide alternative diagnostic codes or ask the Veteran to submit evidence indicative of daily life impairment. To the extent the Federal Circuit opinion still requires additional duty-to-notify requirements for increased rating claims, such requirements are inapplicable to initial rating claims. That is, for initial rating claims, where, as is the case for the claims on appeal here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In line with the above reasoning, Vazquez-Flores v. Peake (dealing with providing additional notice in cases of increased ratings) does not apply to initial rating and effective date claims because VA's VCAA notice obligation was satisfied when the RO granted the Veteran's claim for service connection. 22 Vet. App. 37 (2007). Regardless, the Board notes the RO did send the Veteran a letter in June 2008 indicating all applicable or potentially applicable diagnostic codes for his bilateral knee disabilities claims. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claims, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The claimant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The RO provided the Veteran appropriate VA examinations in 1998, 2000, 2005 and 2008. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA, which records are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. There is no rule as to how current an examination must be, and the Board concludes the examinations in this case are adequate upon which to base a decision. Thus, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claims. Increased Ratings (Knees) Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, such as the claim on appeal here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran's bilateral knees exhibited consistent symptomatology throughout the appellate time frame and, therefore, staged ratings are not warranted. This is explained in further detail below. 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 general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Although the Board must consider the functional impairment resulting for orthopedic disabilities, such as the Veteran's bilateral knee arthritis or limitation of motion, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. at 12 (1996). In this case, the Veteran's left knee was injured in the military and he underwent a medial meniscectomy in 1977. The Veteran's right knee disability was service-connected in 2008 as secondary to overcompensating for his left-knee disability. The Veteran claims entitlement to increased rating for both knees because he suffers with constant pain that limits his ability to walk, stand or conduct any physical activity for any appreciable period of time. The Veteran's left knee disability is rated under diagnostic code 5258. Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5258 does not provide for a rating greater than 20 percent. 38 C.F.R. § 4.71a, DC 5258. The Veteran's right knee disability is rated under DC 5003, for degenerative arthritis. Degenerative arthritis is rated under Diagnostic Code 5003. Degenerative arthritis, when 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 limitation of motion of 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Where arthritis affects only one major joint, as is the case here, DC 5003 does not provide for a rating greater than 10 percent. A higher rating, however, may be assigned under the specific diagnostic codes for limitation of motion if warranted by the evidence. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In this case, the medical evidence does not warrant an increased rating for the left or the right knee under any applicable or arguably applicable diagnostic code. After service, the Veteran complained of bilateral knee pain, the left being worse than the right, continuously. X-rays from March 1998, however, reveal normal bilateral knees with evidence of a past lateral meniscus tear of the left knee. The Veteran underwent a VA examination in July 1998 where the examiner found normal range of motion from 0 degrees extension to 140 degrees flexion bilaterally with good stability. The examiner, however, did note audible crepitus of the left knee. VA outpatient treatment records from the 1990s further note historical knee pain, left being worse than the right. In November 1998, the Veteran exhibited range of motion from 0 degrees extension to 120 degrees flexion on the left knee with stable ligaments. The physician at that time diagnosed the Veteran with chondromalacia patella and issued the Veteran a brace for his left knee. The Veteran privately underwent an MRI in February 1992 where the physician indicated small amounts of joint effusion, but no other abnormality. The Veteran was afforded another VA examination in December 2000 where he complained of daily constant pain, popping, weakness, locking, giving way and fatigue. On examination, the examiner noted the Veteran wears a brace on the left knee, but found no swelling, edema, effusion or instability. The examiner, however, did note the Veteran walked with a slight limp and was fatigued after walking a quarter mile. The examiner noted range of motion to be from 0 degrees extension to 130 degrees flexion with pain starting at 120 degrees and decreased strength on repetition. The examiner further noted an audible pop of the left knee on motion. The December 2000 examiner diagnosed the Veteran with chondromalacia of the left knee status-post left meniscectomy. VA outpatient treatment records through 2008 consistently indicate frequent complaints of bilateral knee pain and requests for stronger pain medications. Most recently, in November 2008, the VA physicians warned the Veteran that he was taking too many pills at one time. The VA outpatient treatment records further note the Veteran is unable to participate in injection therapy to relieve pain because of an egg allergy. The Veteran was afforded VA examinations in May 2005, August 2007 and, most recently, in January 2008. In May 2005, the Veteran exhibited full range of motion of the left knee with no crepitus, laxity, instability or edema. On repetition, the May 2005 examiner noted the Veteran's discomfort increased, but no further functional loss of the left knee was actually demonstrated. The Veteran was diagnosed with chronic left knee pain with x-ray confirmation of minimal degenerative changes. In August 2007, the Veteran was diagnosed with DJD of the left knee and Osgood-Schlatter's disease. The examiner observed no instability, locking or subluxation, but found audible clicks, snaps and crepitation on movement. The examiner noted the Veteran's complaints of giving out, pain, stiffness and weakness noting the Veteran wears a brace and uses a cane for ambulation. Range of motion at that time was from 0 degrees extension to 110 degrees flexion, with pain beginning at 60 degrees flexion. In January 2008, the VA examiner noted DJD of the bilateral knees confirmed by x-ray, minimally affecting the right knee and moderately affecting the left knee. The Veteran had full range of motion of the bilateral knees with no change of the right knee's range of motion on repetition, but a decrease to 130 degrees flexion of the left knee on repetition. Osgood- Schlatter's Disease was again noted, but the main diagnosis at that time was DJD of the bilateral knees. In short, throughout time the Veteran's main manifestation of the bilateral knees is complaints of constant pain. The Veteran's range of motion bilaterally, taking into account further loss on repetition, would not warrant an increased rating under DCs 5003, 5260 or 5261. That is, the Veteran never exhibited any loss of extension bilaterally. The worst finding of limited flexion indicated pain at 60 degrees on the left knee on repetition, which does not warrant a compensable rating under DC 5260. Again, a 20 percent rating is the highest rating available under DC 5258. A 20 percent rating under DC 5258 requires objective medical evidence of frequent episodes of "locking," pain, and effusion into the joint. While there is some evidence of left knee effusion into the joint, there is no similar evidence with regard to the right knee. X-rays of the right knee throughout time indicate minimal degenerative changes. While the Veteran clearly reports pain and locking, no medical professional has ever objectively observed any cartilage abnormality with the right knee or any effusion into the joint. Rather, the Veteran's right knee disability is manifested by x-ray confirmation of DJD, pain and minimal loss of motion. Accordingly, DC 5258 is simply not applicable to the Veteran's right knee disability. Similarly, no higher rating under a different diagnostic code can be applied. The Board notes that there are other Diagnostic Codes relating to knee disorders, such as 5256 (ankylosis of the knee), 5257 (subluxation or lateral instability), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The Veteran's bilateral knees have some limited motion, but are clearly not ankylosed and, therefore, DC 5256 is inapplicable. DCs 5262 and 5263 are also not applicable because the Veteran's right knee disability involves his medial meniscus and not the tibia, fibula or genu recurvatum. Although the Veteran has complained of instability and frequent episodes of "giving out," DC 5257 is not applicable here as to either knee. That is, the medical evidence throughout time, as described above, has never objectively confirmed any unstable ligaments or episodes of subluxation. Indeed, medical professionals have consistently opined to the contrary. An increased rating under DC 5257, therefore, is clearly not appropriate for either knee. The Board notes that the Veteran's functional loss was considered. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 202. According to the medical records, the Veteran complains of constant pain and easy fatigability of both knees. Specifically, the Veteran indicates he cannot walk more than a quarter mile without pain and he cannot stand or sit for prolonged periods. He complains of tenderness and painful motion. The Veteran worked as a carpenter until 1998, where he indicates he had to retire due to his physical limitations due to his knees, especially his left knee. On examination, the Veteran's left knee has been noted by VA examiners to include painful motion or increased limited motion on repetition. The limited motion, however, never restricted flexion beyond 60 degrees. Most range of motion testing reveals bilateral knees with full range of motion. The Veteran currently ambulates with a knee brace and a cane. On examination, however, no examiner has noted any swelling or objective evidence of instability. The Veteran's 20 percent rating for the left knee encompasses medical findings of joint effusion, episodes of "locking and pain and, therefore, the Board finds functional loss is already compensated for in the current rating. Similarly, the Veteran's right knee 10 percent rating encompasses the loss of motion caused by pain and arthritis. The January 2008 examiner most recently indicated the Veteran merely has minimal degenerative changes of the right knee that would not affect his ability to do physical labor. Accordingly, the Board concludes the Veteran's complaints of functional loss due to pain and limitation of motion are already compensated by the current rating. Thus, no increased rating due to functional loss is warranted for either knee. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. The General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. Additionally, in VAOPGCPREC 9-98, the VA General Counsel held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. As indicated above, however, the Board finds application of DC 5257 not warranted for either knee. Awarding a separate rating under DC 5258 and DC 5003, moreover, would constitute impermissible pyramiding of benefits because both diagnostic criteria are premised on loss of function. In short, the Board finds no diagnostic code that would warrant the Veteran to a rating greater than 20 percent for his left knee or a rating greater than 10 percent for his right knee. Extra-Schedular Considerations In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected right knee disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral knee disabilities with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disabilities' level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disabilities are inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The Veteran worked as a carpenter/roofer in the past, but retired allegedly due to his knee disability. The Veteran was most recently afforded a VA examination in January 2008 where the examiner noted the Veteran's retirement. With regard to occupational impairment, the examiner opined that the Veteran's left knee would make the Veteran unemployable for a physical job, but would not affect his ability to do a sedentary job. The Veteran's right knee disability, in contrast, was opined to merely include minimal degenerative changes that would not affect his ability to do physical labor or a sedentary job. The Veteran contends that he is trained to do physical labor and due to his bilateral knees, he can no longer perform the job he is trained to do. As described above, however, this described amount of functional limitation is already contemplated in the ratings currently assigned. There is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the Veteran's disabilities cause impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision in which to assign higher ratings greater than 20 percent for the left knee or 10 percent for the right knee. ORDER Entitlement to an initial rating greater than 20 percent for residuals of a left knee meniscectomy is denied. Entitlement to an initial rating greater than 10 percent for DJD of the right knee is denied. REMAND The Veteran claims he has chronic headaches and upset stomach due to the pain medications he takes for his service- connected bilateral knee pain. The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, although many duty-to-assist letters were sent to the Veteran during the pendency of this appeal, no letter detailed the evidence necessary to substantiate specifically secondary service-connection claims for these specific claims. Corrective action is required. The Veteran's VA outpatient treatment records indicate frequent complaints of headaches and upset stomach, to include a diagnosis of GERD. The treatment records also show the Veteran is on a significant amount of medication for various disabilities, most of which are not service- connected. Most significantly, the Veteran suffered a stroke in 2002 and has been on Plavix ever since, which the Veteran concedes causes him stomach pains. Plavix, as indicated in the VA outpatient treatment records, is not administered to the Veteran for treatment of his service-connected knees, but rather, for his non-service-connected stroke. In August 2003, the VA outpatient treatment records indicate the Veteran complains of headaches since his stroke. Other VA outpatient treatment records from 2003 and 2004 associate the Veteran's headaches with an inoperable arachnoid cyst. On the other hand, the VA outpatient treatment records also confirm the Veteran is on various pain medications for his bilateral knees, to include propoxephene, darvocet and in the past, naproxen. Most recently, VA outpatient treatment records dated November 2008 indicate the Veteran requested stronger pain medications and the doctors were advising him he was taking too many pills at one time, to include propoxephene and darvocet. The Veteran's service treatment records further reflect complaints of headaches, stomach spasms, nausea and vomiting. The Veteran's September 1975 entrance examination, moreover, revealed a pre-service history of duodenal ulcer. At the time of entrance into the military, x-rays were negative and the Veteran provided a note from his doctor indicating the condition had cleared up in March 1975. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA examination in May 2005, but the examiner's opinion was limited merely to whether the Veteran's complaints of headaches and upset stomach were related to naproxen. At that time, the Veteran was no longer taking naproxen, so the examiner opined in the negative. The examiner did not address whether the Veteran had headaches or any current GI diagnoses, to include GERD, related to the Veteran's other knee-related medications or related to in- service treatment. Accordingly, the Board finds the May 2005 VA examination incomplete. The Board further notes that no medical examiner considered whether the Veteran's headaches and GI conditions could directly be associated with his in-service complaints and treatment. See, e.g. Combee v. Brown, 34 F.3d 1039, 1043- 1044 (Fed. Cir.1994) (when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). The in-service and post-service records are not dispositive, but they leave many unanswered questions and indicate the possibility that the Veteran's conditions may be related to service. A new VA examination is therefore indicated. The RO should also take this opportunity to obtain recent VA outpatient treatment records from February 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO must ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the Veteran should be informed of how to establish his claims of secondary service connection under 38 C.F.R. § 3.310. 2. Obtain the Veteran's medical records for treatment of his claimed disabilities from the VA Medical Center in Louisville, Kentucky from February 2009 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. After obtaining the above records, to the extent available, schedule the Veteran for appropriate VA examinations for his claimed conditions of headaches and "upset stomach", claimed also as secondary to medicinal treatment for his service-connected bilateral knee pain, to determine the extent and likely etiology of any headaches or GI condition(s) found, to include GERD, specifically: * Whether the Veteran's headaches or GI condition(s) are causally related to or aggravated by any incident of service, to include in-service complaints and treatment for headaches and stomach cramps; and * Whether the Veteran's pre-existing duodenal ulcer was aggravated beyond the natural progression of the disease by any incident of his military service; and * Whether the Veteran's headaches or any GI condition(s) found were caused by or aggravated by the Veteran's service-connected bilateral knee disabilities, to include any medication taken in connection with his bilateral knee disabilities. Medications taken for unrelated disabilities should not be considered as part of this question. The claims folder and a copy of this decision must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions rendered. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. The RO should then readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claim must be afforded expeditious treatment. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs