Citation Nr: 1031608 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 98-00 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for allergic rhinosinusitis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for vascular headaches. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to an initial disability rating greater than 10 percent for a bilateral knee disability prior to August 10, 2007. 5. Entitlement to an initial disability rating greater than 10 percent for a right knee disability as of August 10, 2007. 6. Entitlement to an initial disability rating greater than 10 percent for a left knee disability as of August 10, 2007. REPRESENTATION Appellant represented by: Luis Vidal Arbona, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to April 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In support of his claim, the Veteran testified at a hearing before RO personnel in August 1994. This case has been pending since March of 1994. At various times the Board has remanded this case for further development in September 2000, October 2003, November 2003, and March 2005. In addition, in September 2000 and again in May 2002, the Board issued decisions denying the new and material evidence and service connection claims at issue. Both times, the Veteran appealed these decisions to the U. S. Court of Appeals for Veterans Claims (Court). In response, in Court Orders dated in June 2001 and February 2003, the Court granted Joint Motions for Remand (Joint Motions). The Board's previous decisions were vacated and remanded for compliance with the instructions described in the Joint Motions. The case has now returned to the Board for appellate review after the most recent March 2005 Board remand. The Board will decide the increased rating claims. But the new and material evidence to reopen the service connection issues will be addressed in the REMAND portion of the decision below and are REMANDED for further development. FINDINGS OF FACT 1. From March 1, 1994 to August 10, 2007, pain upon motion and other factors of functional loss entitle the Veteran to separate 10 percent ratings for the service connected right and left knee chondromalacia patella. There is insufficient evidence of instability in either knee. 2. As of August 10, 2007, for either knee, the evidence of record does not reveal the presence of limitation of flexion to 30 degrees, or limitation of extension to 15 degrees, even with consideration of pain upon motion and other functional loss factors. There is also insufficient evidence of instability in either knee. CONCLUSIONS OF LAW 1. From March 1, 1994 to August 10, 2007, the criteria for a separate initial disability rating of 10 percent, but no higher, for a right knee disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2009). 2. From March 1, 1994 to August 10, 2007, the criteria for a separate initial disability rating of 10 percent, but no higher, for a left knee disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2009). 3. As of August 11, 2007, the criteria for a disability rating higher than 10 percent for a right knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2009). 4. As of August 11, 2007, the criteria for a disability rating higher than 10 percent for a left knee disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As to the higher initial rating claims, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in May 2005 and May 2008. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his higher initial rating claim; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the May 2008 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This appeal stems from an initial rating assignment, and as such is not an original increased rating claim. Therefore, the additional section 5103(a) notice, in particular the notice for increased ratings described in the recent Court case of in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), or in the Federal Circuit case that vacated the Court's previous decision, Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), is simply not required here. With regard to the timing of VCAA notice, in Pelegrini II, the 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 (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ, i.e., RO decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in November 2000. The Court acknowledged in Pelegrini II that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ 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 II, 18 Vet. App. at 120. The Federal Circuit Court and Veterans Claims Court have since interpreted this to mean providing any necessary notice and going back and readjudicating the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA cured any timing notice defect by issuing all additional VCAA notice letters prior to readjudicating the case by way of the June 2008 SSOC. Therefore, because VA cured the timing error, the Board has not erred in finding that VA complied with its duty to notify. In essence, the timing defect in the notice has been rectified, such that there is no prejudicial error in the timing of VCAA notice. Prickett, 20 Vet. App. at 376. As such, the Board concludes prejudicial error in the timing of VCAA notice has not been established. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). However, with regard to the content of VCAA notice, it is noted the claim at issue stems from an initial rating assignment. In this regard, the Court has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating or effective date, such as the case here, does not trigger additional section 5103(a) notice. Indeed, the Court has determined that to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess at 491, 493, 500-501. Subsequently, the Court clarified its holding in Dingess, indicating that it was limited to situations where service connection was granted and the disability rating and effective date assigned prior to the enactment of the VCAA - so prior to November 9, 2000. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Finally, the Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. The Court added that its decision was consistent with its prior decisions in Dingess and Dunlap, supra. In this regard, the Court emphasized its holding in Dingess that "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. Thereafter, once a NOD has been filed, only the notice requirements for rating decisions and SOCs described within 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements ...." Id. In this case, service connection for a bilateral knee disability was granted and the disability rating and effective date assigned in a January 1997 rating decision. Since it was prior to November 9, 2000, no further notice was required per Dingess and Dunlap, supra. However, with respect to content of the notice, the RO actually provided the Veteran with downstream Dingess notice in May 2008 pertaining to the disability rating and effective date elements of his bilateral knee claim. Further, after the Veteran filed an NOD seeking a higher initial rating for his knees, the additional notice requirements described within 38 U.S.C. §§ 5104 and 7105 were met by the SOC and subsequent SSOCs. Specifically, these documents provided the Veteran with a summary of the pertinent evidence as to his bilateral knee disability, a citation to the pertinent laws and regulations governing a higher rating for his bilateral knee disability, and a summary of the reasons and bases for the RO's decision to deny a higher rating for his bilateral knee disability. Thus, the Board concludes that a reasonable person in the Veteran's position would have known from the information he received what he was required to submit in order to substantiate his higher initial rating claim. See Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007) (VCAA notice error not prejudicial when a reasonable person could be expected to understand what was needed). In addition, the Veteran's statements regarding pain and functional loss to medical practitioners demonstrate that he has actual knowledge of what evidence is required to meet the criteria for a higher initial rating for his bilateral knee disability. See Mlechick, 503 F.3d at 1345 (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Therefore, the Board concludes prejudicial error in the content of VCAA notice has not been established as any error was not outcome determinative. See again Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, relevant VA treatment records, and private medical evidence as well. The Veteran was afforded several VA medical examinations to determine the severity of his bilateral knee disability. The Veteran has submitted personal statements, hearing testimony, private medical evidence, and argument from his attorney. Over time, the Board is also satisfied as to substantial compliance with its September 2000, October 2003, and March 2005 remand directives pertaining to his knee disabilities. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). Specifically, the RO was instructed to secure SSA disability records, VA treatment records, and private medical evidence as authorized by the Veteran, provide VCAA notice, and to afford the Veteran VA examinations to determine the severity of his bilateral knee disability. The RO has complied with these instructions. The last VA examination to assess the severity of the Veteran's bilateral knee disability was in August 2007. The record seems to be adequate and there is no need for a more contemporaneous examination. Such need occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a) (2009); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (for initial rating claim, mere passage of time does not trigger VA's duty to provide additional medical examination unless there is allegation of deficiency in evidence of record). Here, the August 2007 VA examination is not unduly remote, and neither the Veteran nor his attorney has specifically stated that his knee disability has worsened since that time. In addition, VA treatment records in 2007 and 2008 are negative for complaints of or treatment for his bilateral knee disability. Therefore, a new VA examination to rate the severity of his bilateral knee disability is clearly not warranted. As there is no indication that additional relevant evidence remains outstanding, the Board is satisfied that the duty to assist has been met for the bilateral knee claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. If there is a question as to which evaluation to apply to the Veteran's disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In a January 1997 rating decision, the Veteran was granted service-connection for a bilateral knee disability characterized as chondromalacia of the patella, patellar tendonitis, and infrapatellar bursitis under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5257, other impairment of the knee. From March 1, 1994 to August 10, 2007, the Veteran's combined bilateral knee disability was rated as 10 percent disabling. Each knee did not receive a separate rating. As of August 10, 2007, however, the Veteran was assigned separate 10 percent ratings for his right and left knee disabilities under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of leg extension. The Veteran seeks a higher rating for both time periods. Because the Veteran appealed the initial rating assigned in the January 1997 rating decision on appeal, the Board must determine the appropriate evaluation from March 1, 1994 to the present, with the possibility of further "staged ratings" based upon the facts found during the periods in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disabilities have been more severe than at others. Id. at 126. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Higher Rating for Right and Left Knees prior to August 10, 2007 From March 1, 1994 to August 10, 2007, the Veteran's bilateral knee disability was rated as 10 percent disabling under Diagnostic Code 5299-5257, other impairment of the knee. 38 C.F.R. § 4.71a. That is, each knee did not receive a separate rating from the RO. The Board finds that Diagnostic Code 5003-5261, degenerative arthritis with limitation of leg extension is a more appropriate Diagnostic Code for rating the Veteran's bilateral knee disability. 38 C.F.R. § 4.71a. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The November 1992 VA examiner originally diagnosed bilateral knee "osteoarthritis." The RO in a February 1993 rating decision originally indentified the disability as "osteoarthritis." In any event, at the very least his bilateral knee disability involving chondromalacia of the patella can be rated as "analogous" to arthritis. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Traumatic arthritis (under Diagnostic Code 5010) is rated analogous to degenerative arthritis under Diagnostic Code 5003. Degenerative arthritis, when established by X-ray findings, in turn is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved - which, here, are Diagnostic Code 5260 for flexion and Diagnostic Code 5261 for extension. 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. For purposes of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45(f). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. VAOPGCPREC 9-98. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 also provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Upon review of the evidence, from March 1, 1994 to August 10, 2007, separate 10 percent ratings for both the right and left knee are warranted under Diagnostic Code 5003-5261. 38 C.F.R. § 4.7. Although the RO only previously assigned a combined 10 percent rating for both knees, the Board concludes that it would be more appropriate to assign a separate 10 percent rating for the right knee and a separate 10 percent rating for the left knee from March 1, 1994 to August 10, 2007. He had symptoms for both knees which represented two distinct and separately disabling conditions. Specifically, the Board acknowledges that VA examinations dated in November 1992, September 1994, and June 2004 reveal noncompensable limitation of flexion and extension of both the right and left knee. Full range of motion was documented of 140 degrees flexion and 0 degrees extension. However, the Board must also consider the factors of functional loss including pain. In this regard, the November 1992 VA examiner documented that the Veteran's knees were "painful." The September 1994 VA examiner discussed symptoms of bilateral knee cramping; numbness; difficulty with squatting, walking, lifting heavy objects, and climbing stairs. There was a positive patellar grinding test for both knees with crepitus. The June 2004 VA examiner noted that the Veteran underwent bilateral arthroscopic surgery for both knees in 1995. The Veteran again reported "consistent" bilateral knee pain. Most importantly, increased pain with repetitive motion was noted and loud crepitus during range of motion was also noted. The examiner did not document when pain began. But for purposes of determining disability ratings, painful motion is equivalent to limited motion. See Powell v. West, 13 Vet. App. 31, 33-34 (1999). See also Hicks v. Brown, 8 Vet. App. 417, 420-21 (1995) (painful motion of a major joint by degenerative arthritis deemed to be limited motion even though a range of motion may be possible beyond the point when pain sets in). Tenderness and a positive patellar grinding test were also again noted. Overall, his chondromalacia patella of both knees was described as "moderate" in severity. VA treatment records also document unspecified "arthralgia" of the knees in certain instances. Therefore, based on objective evidence of pain upon motion and other factors of functional loss in both knees, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and the Deluca case have been considered, providing a basis for assigning separate 10 percent initial ratings for both the right and left knees under Diagnostic Code 5003-5261. However, from March 1, 1994 to August 10, 2007, separate ratings beyond 10 percent for the Veteran's right knee and left knee disabilities are not warranted under Diagnostic Codes 5003, 5260, or 5261. 38 C.F.R. § 4.7. Specifically, for both the right and left knee, at no time has the Veteran exhibited right knee flexion limited to 30 degrees or right knee extension limited to 15 degrees. See November 1992 VA examination; September 1994 VA examination; June 2004 VA examination (all documenting full range of motion for the knees, with some evidence of pain upon motion). With regard to functional loss, there is no indication of any additional range-of-motion loss beyond these findings, even with consideration of pain and other factors of functional loss. Moreover, for both knees, the above VA examiners also observed no swelling, no deformity, no lack of endurance, no incoordination, no edema, no weakness, normal strength (5/5), no need for assistive devices, independent in activities of daily living. In fact, without consideration of the functional loss factors previously described above, the current separate 10 percent evaluations available under Diagnostic Code 5003-5261 for limitation of extension could not be justified. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. The Board also finds that VA and SSA medical evidence of record supplies no support for separate ratings higher than 10 percent for both knees. In summary, resolving doubt in the Veteran's favor, from March 1, 1994 to August 10, 2007, the Board finds that the evidence supports separate 10 percent disability ratings, but no greater, for right and left knee chondromalacia patella under Diagnostic Code 5003-5261. 38 C.F.R. § 4.3. The Board emphasizes that from March 1, 1994 to August 10, 2007, these separate 10 percent ratings for the right and left knee should be assigned instead of the previous combined 10 percent rating under Diagnostic Code 5299-5257. Analysis - Higher Rating for Right and Left Knees after August 10, 2007 Upon review of the evidence, as of August 10, 2007, separate ratings beyond 10 percent for the Veteran's right knee and left knee chondromalacia patella are not warranted under Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.7. Specifically, for both the right and left knee, at no time since August 10, 2007 has the Veteran exhibited right knee flexion limited to 30 degrees or right knee extension limited to 15 degrees. VA treatment records dated in 2007 and 2008 are negative for any knee complaints or treatment. Moreover, the August 2007 VA joint examiner assessed 10 degrees extension to 120 degrees flexion for both knees with consideration of when pain began during the range of motion. Stiffness, flare-ups of the knees lasting 3-4 hours, the use of knee braces, antalgic gait, a left knee limp, tenderness, poor tolerance for stairways, and difficulty squatting after repetitive motion were all documented. This is clearly indicative of separate 10 percent ratings, but no greater, for both knees under Diagnostic Code 5261, limitation of extension. 38 C.F.R. § 4.71a. With regard to functional loss, there is no indication of any additional range-of-motion loss beyond these findings, even with consideration of any other factors of functional loss. In this respect, for both knees, the August 2007 VA joint examiner observed no weakness, no effusion, no edema, and independence in activities of daily living. In fact, without consideration of the functional loss previously described above, the current separate 10 percent evaluations available under Diagnostic Code 5261 for limitation of extension could not be justified. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. Throughout the entire appeal period, other diagnostic codes for knee disabilities that provide a rating greater than 10 percent are not more appropriate because the facts of this case do not support their application. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Code 5256 (for ankylosis of the knee), Diagnostic Code 5257 (instability), Diagnostic Code 5258 (dislocated cartilage), Diagnostic Code 5262 (impairment of the tibia and fibula). See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). As to instability under Diagnostic Code 5257, 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 is based upon additional disability. VAOPGCPREC 23-97; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (claimant is entitled to separate disability ratings for different manifestations of the same disability when the symptomatology of one manifestation is not duplicative or overlapping of the symptomatology of the other manifestations). In this regard, as to instability, the September 1994 VA joint examiner recorded no mediolateral instability of both knees upon varus and valgus stress testing, a negative anterior drawer test, and normal X-rays. The June 2004 VA joint examiner recorded no episodes of dislocation or recurrent subluxation, no knee joint instability, no varus deformity, no valgus deformity, a negative Lachman's test, a negative McMurray's test, and negative anterior and posterior drawer tests. The Veteran's lay complaints of loss of balance and locking were not confirmed upon examination at that time. Finally, the August 2007 VA joint examiner recounted the Veteran's denials of his knees locking or giving way, no episodes of dislocation or recurrent subluxation, a negative McMurray's test, a negative Lachman's test, and no instability in the medial, lateral, anterior, and posterior cruciate ligaments. Overall, the medical and lay evidence of record does not demonstrate recurrent subluxation or lateral instability to warrant a separate rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Accordingly, subsequent to August 10, 2007, the Board finds that the preponderance of the evidence is against disability ratings greater than 10 percent for the Veteran's right and left knee chondromalacia patella. 38 C.F.R. § 4.3. Fenderson Consideration The Board has now assigned separate 10 percent disability ratings for the right and left knee throughout the entire period from March 1, 1994 to the present. Since there have been no occasions within the effective dates mentioned when his right and left knee disabilities have been more severe than 10 percent each, there is no basis to further "stage" his ratings for his disability on appeal. Fenderson, 12 Vet. App. at 125-26. Extra-Schedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). Initially, the rating criteria for knee disabilities reasonably describe the claimant's disability level and symptomatology, with consideration of factors of functional loss. Thus, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The Board finds no evidence that the Veteran's right and left knee problems markedly interfere with his ability to work, meaning above and beyond that contemplated by his separate ratings. The August 2007 VA joint examiner and SSA disability records assess that the Veteran has not worked since 1991 due to his depression, rhinitis, and headaches. VA and SSA records fail to discuss his knee problems as a causative reason for his unemployment. In short, there is insufficient evidence of marked interference with employment due to his service-connected knees. Finally, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations due solely to his service-connected knees, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. VAOPGCPREC 6-96. His evaluation and treatment for his service- connected knees has been primarily on an outpatient basis, with only one instance of inpatient arthroscopic surgery in 1995. ORDER From March 1, 1994 to August 10, 2007, a separate initial disability rating of 10 percent for a right knee disability is granted, subject to the laws and regulations governing the payment of VA compensation. From March 1, 1994 to August 10, 2007, a separate initial disability rating of 10 percent for a left knee disability is granted, subject to the laws and regulations governing the payment of VA compensation. As of August 11, 2007, an initial disability rating greater than 10 percent for a right knee disability is denied. As of August 11, 2007, an initial disability rating greater than 10 percent for a left knee disability is denied. REMAND Before addressing the merits of the new and material evidence and service connection claims at issue, the Board finds that additional development of the evidence is required. First, in Kent v. Nicholson, 20 Vet. App. 1, 10-11 (2006), the Court held that VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In this regard, for the two new and material evidence claims, none of the VCAA notice letters of record complied with any of the three elements of Kent. A new VCAA letter from the RO is required to correct the prior deficiencies. Second, if the new and material evidence claims remain denied, the RO should issue an SSOC that includes the prior version of 38 C.F.R. § 3.156(a) (2001), in effect before August 29, 2001. Third, as to the service connection claim for an acquired psychiatric disorder, an addendum to the previous August 2007 VA psychiatric examination is necessary. The August 2007 psychiatric examination was conducted to determine the nature and etiology of the Veteran's current psychiatric problems. The examiner opined that the Veteran's current dysthymic disorder is not caused by or the result of his military service. In making this determination, the examiner reasoned that there was no evidence of psychiatric complaints, findings, or treatment during his military service from June 1977 to April 1983. However, STR mental health clinic treatment notes dated from May 1981 to July 1981 clearly document treatment for feelings of depression, anxiety, insomnia, alcohol abuse, and other symptoms. His in- service diagnoses included an adjustment disorder and a passive- aggressive personality disorder. In this respect, although the VA examiner indicated that she reviewed the entire claims folder, it appears she may have failed to review pertinent STR mental health clinic treatment notes dated from May 1981 to July 1981, as well as the Veteran's April 1983 separation examination that noted a reported history of mental health problems. A medical opinion based on an inaccurate factual premise has no probative value. See generally Reonal v. Brown, 5 Vet. App. 458 (1993). Furthermore, the Board is not required to accept a medical opinion that is unsupported by clinical findings. Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). As such, an addendum is required here from the August 2007 VA psychiatric examiner, or, if she is no longer available, from another VA psychiatric examiner. In providing the above opinion, the examiner should also comment on whether any of the Veteran's current psychiatric disorders, including any personality disorder, represents a progression of the in-service diagnosis, a correction of an error in the in- service diagnosis, or the development of a new and separate condition from that which was diagnosed while in-service. See 38 C.F.R. §§ 4.13, 4.125(b) (2009); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Fourth, the Veteran's VA treatment records on file only date to June 2008, approximately two years ago. So if he has since received additional relevant treatment, these records should be obtained. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the new and material evidence and service connection issues are REMANDED for the following action: 1. As to the new and material evidence claims for allergic rhinitis and vascular headaches, send the Veteran a corrective VCAA notice that is compliant with Kent v. Nicholson, 20 Vet. App. 1, 10-11 (2006). Specifically, this letter should: (A) Describe the criteria for reopening a previously denied claim under the prior standard of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), in effect for claims filed before August 29, 2001. That is, "new and material evidence" means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a) (2001). (B) Identify what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the RO's prior denial on the merits in February 1993. That is, in order to reopen his allergic rhinitis claim, he must submit evidence that a permanent residual allergic rhinitis condition was present at separation with continuity of symptoms thereafter or he must submit a medical nexus opinion. In addition, in order to reopen his claim for service connection for vascular headaches, he must submit probative evidence that his headache disorder which preexisted service was aggravated beyond its normal progression during service; and (C) Provide general VCAA notice for the underlying service connection claims. 2. Secure any relevant VA treatment records dated after June of 2008 from the VA Medical Center in San Juan, Puerto Rico. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA records are available, a response to that effect is required and should be documented in the file. 3. Then request that the August 2007 VA psychiatric examiner provide an addendum to her previous opinion. Another VA examination may not be necessary in order to provide this opinion unless the examiner finds that an examination of the Veteran would be necessary in order to provide the requested opinions. If the August 2007 VA psychiatric examiner is no longer available, please have another VA psychiatrist or psychologist provide the necessary addendum and medical opinions, after review of the entire claims folder. After a comprehensive review of the claims folder, the VA examiner must specifically answer the following questions: (A) What is the current diagnosis or diagnoses for the Veteran's mental health problems? (B) Do the changes in diagnoses throughout the entire appeal period represent a progression of the prior diagnoses, correction of an error in the prior diagnoses, or development of new and separate conditions? (C) Is it at least as likely as not (50 percent or more probable) that any current psychiatric disorder had its onset during service or is otherwise related to the Veteran's documented in-service symptoms? In making this determination, please address whether the in-service diagnosis of passive-aggressive personality disorder during service was proper. If it was proper, please address whether a current psychiatric disability was superimposed on the personality disorder identified in service, resulting in additional disability. In rendering this opinion, please review STR mental health treatment notes dated from May 1981 to July 1981 that document symptoms of depression, anxiety, insomnia, conflicts with supervisors, hallucinations, poor memory, and alcohol abuse. The Veteran was prescribed Atarax during service. He received in-service diagnoses of an adjustment disorder, alcohol withdrawal, and passive-aggressive personality disorder. In addition, his April 1983 service separation examination listed a reported history of depression, worry, and insomnia. Post-service VA, SSA, and private treatment records include various psychiatric diagnoses of major depressive disorder, dysthymic disorder, affective disorder, somatoform pain disorder, alcohol and drug abuse, and personality disorder. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 4. After ensuring completion of this development, the RO should readjudicate the new and material evidence and service connection issues on appeal. If the disposition remains unfavorable, the RO should furnish the Veteran and his attorney with a SSOC and afford the applicable opportunity to respond. For the new and material evidence claims, this SSOC should include a copy of the prior version of 38 C.F.R. § 3.156(a) (2001), in effect for claims to reopen filed before August 29, 2001. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs