Citation Nr: 1031472 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 96-29 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a herniated nucleus pulposus, to include as secondary to service-connected right knee and left ankle disabilities. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee. 3. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the left ankle. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from June 1978 to October 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). The Board remanded the case for additional action in September 2003, October 2006 and March 2009. The case has now been returned to the Board for further appellate review. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Statement from Veteran, dated June 2004. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a herniated nucleus pulposus 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. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran's right knee disability is manifested by X-ray evidence of degenerative joint disease; pain on range of motion with flexion limited to no more than 90 degrees and full extension to zero degrees; and painful movement, fatigability, weakness, and flare-ups, without evidence of malunion or nonunion of the tibia and fibula or left ankle impairment related to the left knee disability, resulting in no more than slight knee impairment. 2. The Veteran's right knee disability is not manifested by ankylosis; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; symptomatic removal of semilunar cartilage resulting in additional disability; or genu recurvatum. 3. The Veteran's right knee disability is manifested by no more than slight instability of the right knee as demonstrated by objective medial instability upon stress valgus and complaints of giving way and locking. 4. Throughout the appellate period, the Veteran's service connected left ankle disability has been manifested by impairment approximating (and not exceeding) an equivalent to marked limitation of motion; malunion, nonunion, or ankylosis of the ankle is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code 5003-5262 (2009). 2. The criteria for a separate 10 percent rating for instability of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Codes 5003, 5257 (2009). 3. The criteria for a 20 percent rating for degenerative joint disease of the left ankle have been met. 38 U.S.C.A. §§ 501, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Codes 5270-5274 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), which was enacted on November 9, 2000, eliminated the concept of a well- grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126; 38 C.F.R. § 3.159 (2009). Under the VCAA, the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that VA must also notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction or regional office (RO) decision on a claim for VA benefits. In the present case, the unfavorable RO decisions that are the basis of this appeal were already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in May 2001, April 2004, November 2006, and June 2009. The Veteran was also provided with Vazquez-Flores notice pertaining to increased ratings claims in June 2009. The notice letters fully addressed all three notice elements, notified the Veteran of the Dingess criteria, and informed the Veteran of his and VA's respective duties for obtaining evidence. Though the letters were sent after the initial rating decisions, the claim was readjudicated via supplemental statements of the case, the most recent being issued in December 2009. Thus, per Pelegrini, the Veteran was provided adequate notice and afforded subsequent VA process; therefore the Board finds that the Veteran was not prejudiced by the timing of the VCAA notice letters. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records and private treatment records. The Veteran submitted statements and treatment records and was afforded several VA examinations. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to a Rating in Excess of 10 Percent for Degenerative Joint Disease of the Right Knee. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (for degenerative arthritis) and 5262 (for malunion of the tibia and fibula with knee or ankle disability). He contends that he is entitled to an increased rating because such disability has increased in severity. The Veteran particularly endorses pain, swelling, stiffness, and occasional "locking" and giving away" of the right knee. He also states that his knee disability is so severe that he has difficulty sleeping and driving. See Brief In Support of Appeal, May 2006. For all of these reasons, he believes that a rating in excess of 10 percent should be granted. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. Such provides a 10 percent rating for malunion of the tibia and fibula with a slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with a moderate knee or ankle disability. A 30 percent rating is assigned for malunion of the tibia and fibula with a marked knee or ankle disability. A 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Factual Background The evidence of record includes VA examination reports, VA treatment records, and private medical records. Upon VA examination in October 1993, the Veteran was diagnosed with degenerative joint disease with status post right knee trauma. He endorsed weakness of the right knee; however, upon examination, he demonstrated full range of motion. A 10 percent rating was assigned at that time based on complaints of weakness of the right knee and limping on his right side, which objectively confirmed painful motion. Upon VA examination in April 1995, the Veteran endorsed burning pain and swelling of the right knee. Physical examination revealed no swelling or deformity; however, there was medial instability upon stress valgus. There was no anterior or posterior instability and drawer test was negative. Crepitus was also present. The Veteran had full range of motion. In June 1998, the Veteran testified at the Regional office and stated that he experienced constant right knee pain and daily swelling and inflammation. He noted that the right knee condition interfered with his employment as a police office. VA outpatient treatment records dated from 1998 to 2001 reflect continued complaints of right knee pain and treatment for degenerative joint disease. Upon VA examination in July 1999, the Veteran's right knee range of motion was from 0 to 130 degrees; notably, valgus stress test was positive for medial instability. All other instability tests were negative. Crepitus was present. The diagnosis was right knee patellofemoral syndrome, and degenerative joint disease of the right knee with old fracture on the lateral tibial plateau. Upon VA examination in November 2001, the Veteran stated that his right knee pain was worse since his last examination. He endorsed constant, severe right knee pain and swelling, and noted that he was unable to use a knee brace secondary to swelling in the left ankle. He also complained of right knee instability symptomatology, including giving way and falling. Physical examination revealed full extension of the right knee and 130 degrees of flexion (with pain commencing at 120 to 130 degrees). There was no effusion but the lateral and medial joints lines were tender palpation. Drawer test, valgus/varus, McMurray's, and Lachman's tests were all negative. The Veteran ambulated with a one-point cane, a slow gait, and with a left lower extremity limp. X-ray findings indicated degenerative joint disease of the patella with no evidence of fracture or dislocation (but evidence of an old fracture involving the lateral tibial plateau). The diagnosis was degenerative joint disease of the right knee. A January 2001 letter from the Veteran's private physician, Dr. Vargas, reflects continued complaints of knee pain with noted limitations on activities like walking, standing, sitting, and climbing. A January 2003 letter from Dr. Vargas shows that the Veteran continued to complain of knee pain, swelling, stiffness, and joint limitations. It was noted that his symptoms were increased due to his morbid obesity. Physical examination showed that the Veteran walked with a cane and had difficulty standing from the sitting position. There was marked swelling on the right knee, as well as tenderness to palpation on the right suprapatellar area. Although specific range of motion findings were not provided, it was noted that flexion/extension testing was difficult to perform due to pain. Dr. Vargas stated that the Veteran's degenerative and progressive musculoskeletal conditions markedly imitated his work activities and had worsened in severity since the last examination. A January 2004 letter from Dr. Vargas reflects much of the same findings. Private treatment records from Dr. Velez, dated from January 2009 to July 2009, show continued complaints of right knee pain. A September 2009 VA examination report shows that the Veteran complained of right knee pain with an intensity of 7 out of 10, as well as stiffness an limitation of motion. He endorsed weekly flare-ups (9 out of 10 on the pain scale), lasting several hours and aggravated by prolonged sitting or standing. He used a one- point cane for ambulation. Upon physical examination, the Veteran was unable to repeatedly squat due to pain; there was tenderness on the peripatellar area of the right knee; and he walked with an antalgic gait. He also limped due to total left knee replacement. The Veteran displayed full range of motion of the right knee (0 to 140 degrees); motion was painful with the last 30 degrees of flexion and extension, but there was no functional loss. No instability of the ligaments was noted and all related instability tests were negative (i.e., Lachman's and McMurray's, etc.). The diagnosis was degenerative joint disease of the right knee (moderate). Analysis The Veteran's right knee disability is manifested by X-ray evidence of degenerative joint disease; pain on range of motion with flexion limited to no more than 130 degrees and full extension to zero degrees; and painful movement, weakness, and flare-ups, without evidence of malunion or nonunion of the tibia and fibula or right ankle impairment related to the right knee disability, resulting in no more than slight knee impairment. As the Veteran's right knee disability does not result in compensable loss of flexion or extension, he has been assigned a 10 percent evaluation based on slight knee impairment under diagnostic code 5260. (See rating decision of February 1994). In this regard, the Board finds that the Veteran is not entitled to a separate or higher rating under Diagnostic Code 5260 pertinent to limitation of flexion. Under such Diagnostic Code, a higher evaluation of 20 percent is not warranted unless flexion is limited to 30 degrees. As there is no evidence that the Veteran experiences this level of limitation of flexion as such is limited, at most, to 130 degrees, he is not entitled to an increased rating under Diagnostic Code 5260. In so finding, the Board acknowledges that the most recent VA examination in September 2009 revealed full range of motion (0 to 140) with pain in the last 30 degrees of flexion. See C & P Examination, Joints, September 2009. In this regard, an evaluation of a musculoskeletal disability must also include consideration of the Veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran is competent to report pain and stiffness associated with his right knee disability. However, the September 2009, specifically noted that there was no functional loss due to pain during the examination (DeLuca criteria). Moreover, despite the Veteran's subjective complaints of pain on extension, the objective findings, which date back to 1993, consistently show that he has had almost full range of extension (to 130 at worst). The Board also acknowledges the Veteran's complaints of chronic pain and stiffness and that he should receive a higher disability rating. However, the Veteran has not demonstrated that he has the medical expertise that would render competent his statements as to the relationship between his injury during active military service and the current severity of his arthritis of the right knee disability. His opinion alone cannot meet the burden imposed by 38 C.F.R. § 4.71 with respect to the current severity of his disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, the Veteran's reports of chronic pain, tenderness, swelling, and stiffness do not meet or more nearly approximate the criteria for an increased rating under Diagnostic Code 5260. See 38 C.F.R. § 4.7 (2009). The Board has also considered whether the Veteran is entitled to a separate or higher rating under Diagnostic Code 5261 pertinent to limitation of extension. However, the Board finds that the Veteran does not meet such criteria. Specifically, under such Diagnostic Code, extension must be limited to, at least, 10 degrees in order to warrant a compensable evaluation. Upon a review of the evidence, the Board finds that the Veteran's right knee disability is manifested by full extension to zero degrees. As such, the evidence does not support a higher or separate rating under Diagnostic Code 5261. In so finding, the Board acknowledges that the most recent VA examination in September 2009 revealed full range of motion (0 to 140) with pain in the last 30 degrees of extension. See C & P Examination, Joints, September 2009. Again, an evaluation of a musculoskeletal disability must also include consideration of the Veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The Veteran is competent to report pain and stiffness associated with his right knee disability. However, the September 2009, specifically noted that there was no functional loss due to pain during the examination (DeLuca criteria). Again, despite his subjective complaints of pain upon extension, the objective findings, which date back to 1993, show full extension (0 degrees) of the knee. See VA Examinations dated in October 1993, April 1995, July 1999, November 2001, and September 2009. The Board also acknowledges the Veteran's complaints of chronic pain and stiffness and that he should receive a higher disability rating. However, the Veteran has not demonstrated that he has the medical expertise that would render competent his statements as to the relationship between his injury during active military service and the current severity of his arthritis of the right knee disability. His opinion alone cannot meet the burden imposed by 38 C.F.R. § 4.71 with respect to the current severity of his disability. See Espiritu, supra. Therefore, the Veteran's reports of chronic pain, tenderness, swelling, and stiffness do not meet or more nearly approximate the criteria for an increased rating under Diagnostic Code 5261. See 38 C.F.R. § 4.7 (2009). Regarding Diagnostic Code 5262, pertinent to impairment of tibia and fibula, under which the Veteran's right knee disability has been rated, the Board finds that he is not entitled to a rating in excess of 10 percent. In this regard, the Board notes that such criteria requires malunion or nonunion of the tibia and fibula; however, the evidence fails to demonstrate such symptomatology. Moreover, there is no evidence of right ankle impairment related to the Veteran's right knee disability. Additionally, the Board finds that the Veteran's right knee disability results in no more than slight impairment in the form of arthritis and painful, limited motion, which is compensated in the 10 percent rating already assigned under Diagnostic Code 5003- 5262. There is no other symptomatology which would warrant a higher or separate rating under Diagnostic Code 5262. There is also no evidence of ankylosis or semilunar cartilage issues, therefore Diagnostic Codes, 5256, 5258 and 5259 are not applicable. The Board has also contemplated whether any separate evaluations are applicable here. In this regard, the Board acknowledges VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, in the present case, the medical findings do not establish loss of flexion to a compensable degree. Thus, assignment of separate evaluations for limitation of flexion and extension of the right leg is not appropriate here. Consequently, the Board finds that the disability picture for the Veteran's service-connected degenerative joint disease of the right knee does not more nearly approximate the criteria for a 20 percent evaluation than those for a 10 percent evaluation. In light of the above, a rating higher than 10 percent for arthritic symptomatology of the right knee is not warranted here. 38 C.F.R. § 4.7. Instability While the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his arthritic (limitation of motion) symptomatology, a separate 10 percent rating for instability of the right knee is warranted here. In this regard, the Board calls attention to the provisions of VA General Counsel opinion 23-97 (VAOPGCPREC 23-97). That opinion provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. See also VAOPGCPREC 9-98. Here, the evidence establishes degenerative joint disease (arthritis) of the right knee. The evidence also shows objective findings of medial instability as demonstrated upon VA examinations in April 1995 and July 1999. Indeed, the April 1995 examiner expressly noted medial instability upon stress valgus. In addition to these findings, the record demonstrates lateral and medial joint line tenderness and crepitus of the right knee. See November 2001 VA Examination. The Veteran has also provided credible and consistent statements as to frequent episodes of giving way, "locking," and falling. To aid with his instability, he has been shown to use a one-point cane for ambulation; he is unable to wear a brace due to swelling. The Board acknowledges that the most recent VA examination in September 2009 did not show instability of the right knee. Nevertheless, based on the various objective findings of medial instability throughout the record, and further considering the Veteran's statements regarding locking/giving way, the Board will resolve doubt in the Veteran's favor and award a separate 10 percent for slight instability of the right knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5257. The Veteran is not entitled to a rating in excess of that amount. Indeed, the next higher rating under Diagnostic Code 5257 would require moderate recurrent subluxation or instability. Again, the most recent VA examination did not show any instability of the right knee, and all other VA examinations revealed negative instability tests (Lachman's, McMurray's, etc.). Therefore, the Veteran's right knee instability is more nearly approximated by the 10 percent criteria, which contemplates only "slight" instability. In sum, throughout the entire period on appeal, the Veteran is entitled to a separate 10 percent rating, but no higher, for instability of the right knee. 2. Entitlement to a Rating in Excess of 10 Percent for Residuals of a Fracture of the Left Ankle The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (for degenerative arthritis) and 5271 (for limited motion in the ankle). He contends that he is entitled to a higher rating because such disability has increased in severity. The Veteran particularly endorses constant pain, "locking," and tenderness of the left ankle. For these reasons, he believes that a rating in excess of 10 percent should be granted. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if 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. Limitation of ankle motion is addressed under Diagnostic Code 5271. Under that diagnostic code, a 10 percent disability rating is assigned where the evidence demonstrates moderate limitation of motion. A 20 percent rating is for application where there is marked limitation of motion. See 38 C.F.R. § 4.71a, DC 5271 (2009). Normal range of motion in the ankle is 0 to 20 degrees of dorsiflexion and from 0 to 40 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Alternatively, ankle disorders could potentially be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, as a foot injury. Pursuant to Diagnostic Code 5284, a 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. With actual loss of use of the foot, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5167. Factual Background The Veteran's claim for an increased rating was received in April 1999. By way of history, service connection was established for a left ankle disability in February 1994; a 10 percent evaluation under Diagnostic Codes 5003-5271 was assigned for painful motion, as there was no evidence of limitation of motion at that time. Upon VA examination in October 1993, the Veteran demonstrated full range of motion of the left ankle and good muscle strength; the pertinent diagnosis was status post left ankle fracture. An April 1995 VA examination showed no swelling, deformity, or instability of the left ankle. Dorsiflexion was to 10 degrees; plantar flexion was to 45 degrees. The pertinent diagnoses were left ankle fracture and post-traumatic bone fragments and calcaneal spurs (as shown on April 1995 X-rays). VA outpatient treatment records from 1998 and 2000 show continued complaints of left ankle pain and swelling. A July 1999 VA examination report shows that the Veteran complained of left ankle pain, cramps, and locking. He endorsed daily flare-ups of pain (10 out of 10 on the pain scale). He used no braces or assistive devices. Dorsiflexion was to 5 degrees; plantar flexion was to 40 degrees; inversion was to 20 degrees; and eversion was to 10 degrees. There was no evidence of swelling or deformity, although crepitus was present. The Veteran limped with his left lower extremity. The diagnosis was left ankle fracture. Private treatment records from Dr. Vargas, dated from January 2001 to July 2001, show ankle tenderness and swelling; no objective findings as to range of motion were provided. A November 2001 VA examination shows that the Veteran complained of pain, swelling, and decreased range of motion of the left ankle. He also endorsed left ankle "locking" and giving way. He reported that the pain was constant and precipitated by walking/standing. Physical examination revealed dorsiflexion to 7 degrees and plantar flexion to 37 degrees. There was tenderness to palpation at the malleolus, along with swelling and crepitation. Talar tilt test was negative. The Veteran ambulated with a one-point cane and a slow gait with a left extremity limp. No ankylosis was present. A January 2003 letter from Dr. Valgas shows a diagnosis of "degenerative progressive joints disease," and complaints of ankle pain, swelling, and limitation of motion. Physical examination of the ankles confirmed swelling and tenderness to palpation on lateral and medial malleolus without erythema or increased heat. Babinski reflex was absent; there was no foot drop. His progressive musculoskeletal condition was noted as causing marked limitations on work activities. A September 2009 VA examination report shows that the Veteran complained of weekly flare-ups (9 out of 10 on the pain scale), lasting several hours, and precipitated by prolonged standing. Physical examination of the left ankle revealed tenderness in the perimalleolar area; no ankylosis was noted. His gait was antalgic and he limped due to a recent total left knee replacement. Plantar flexion was 0 to 45 degrees, with pain in the last 20 degrees and no functional loss; and plantar dorsiflexion was 0 to 25 degrees, with pain in the last 10 degrees, with no functional loss. Although pain was elicited in the ankle joint, the examiner noted that there was not weakness or fatigue. The diagnosis was left ankle degenerative joint disease and recurrent sprains. Analysis At the outset, the Board notes that the recent clinical findings do not disclose that the Veteran has ankylosis of the left ankle. See VA Examination, September 2009. As such, DCs 5270 and 5272 are not for application in evaluating the left ankle pathology. The Veteran has also not undergone an astragalectomy on the left ankle and he does not have malunion of the left os calcis or astragalus; therefore, DCs 5274 and 5273 also do not apply. Overall, the Veteran has some limitation of left ankle motion, an antalgic gait/limp, and pain on motion. See 38 C.F.R. § 4.71, Plate II. Taking into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59 and DeLuca, the subjective and objective evidence more closely approximates a finding of severe impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Indeed, VA examinations in July 1999 and November 2001, revealed that the Veteran only retained approximately 5 degrees and 7 degrees of dorsiflexion, respectively. More recently, the September 2009 examination revealed dorsiflexion to 25 degrees, but with pain commencing at 15 degrees. Moreover, throughout the period on appeal, objective findings have consistently shown swelling, pain to palpation, and crepitus of the left ankle. See November 2001 VA Examination; Letter from Dr. Vargas, January 2003. The Veteran has also endorsed locking, and giving way of the ankle, although ankylosis has not been shown by objective findings. Based on the foregoing, a severe limitation of motion has been approximated in the left ankle. However, the Board can find no basis under the applicable Diagnostic Codes to grant the Veteran an evaluation in excess of the 20 percent rating granted herein without a finding of ankylosis of the left ankle. Hence, the evidence supports a rating of 20 percent, but not more for the left ankle pathology. In addition, as 20 percent is the maximum rating under Diagnostic Code 5271, an increased rating under the guidance of DeLuca is not applicable in this case and would not result in a rating in excess of 20 percent disabling. Where a musculoskeletal disability is currently evaluated at the highest schedular evaluation available based upon limitation of motion, a DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is denied. A separate 10 percent rating, but no higher, for instability of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. A 20 percent rating for the degenerative joint disease of the left ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran and his representative contend that VA has not properly considered his back claim on a direct basis. Indeed, thus far, the numerous VA opinions/examinations obtained have only addressed whether the Veteran's current low back disability is secondary to his service-connected right knee and left ankle disabilities. See VA Examinations dated in July 1999, September 2003, and September 2009. The Veteran's service treatment records show multiple complaints and treatment relating to his back. In April 1980, the Veteran presented with complaints of back secondary to lifting a hydraulic cylinder. He was diagnosed with muscle strain and placed on a 10 day profile later that month. In May 1983, the Veteran presented with complaints of low back pain. Pain was described as being in the bilateral lower lumbar region, with tenderness to palpation, and decreased range of motion on forward flexion. He was diagnosed with "strain vs. spasm." The available post-service medical evidence shows that the Veteran was diagnosed with degenerative joint disease of the lumbosacral spine upon VA examination in October 1993. At that time, he reported that his current back problem began in 1978 (i.e., during service). In this regard, the record shows that the Veteran has endorsed continuous back symptomatology since service. For instance, at an October 2001 Regional Office hearing, the Veteran testified that he initially injured his back in April 1980 while lifting a hydraulic base. He stated that he received in-service treatment for this injury and that his back pain/symptoms have persisted to the present day. See Regional Office Hearing, October 2001, pp. 2-4. Here, it is noted that lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and 'may provide sufficient support for a claim of service connection.' Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has also submitted several "buddy" statements which support the Veteran's contention that he sustained injuries to his lower back during active service. See Statement From O.L., dated October 1993; see also Statement From S.R., dated September 1993. Again, the Veteran's back claim has been continuously adjudicated as a claim for secondary service connection despite his contentions that a back injury was incurred in-service. However, none of the VA opinions so far provided is adequate to assess the Veteran's claimed back disorder because they do not take into account his report of in-service injury or address all theories of entitlement, namely direct service connection. VA is obligated to consider all possible theories of entitlement. See Bingham v. Principi, 18 Vet. App. 470, 474 (2004). An addendum opinion should address whether service connection is warranted on a direct basis. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). A remand is therefore required to obtain an adequate VA opinion. Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion as to the nature and current severity of his back disability. The claims file must be made available to the examiner for review in connection with the examination. The examiner may request that the RO schedule the Veteran for a VA examination to determine if required for the opinion. Based on review of the record, the examiner must answer the following question: Is it at least as likely as not that the current back disorder had its onset in-service or is causally related to any incident of service, including the injuries the Veteran describes? A complete rationale is requested for any opinion provided. 2. Review the record and complete any further development, if necessary. Thereafter, readjudicate the issues on appeal. If any claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs