Citation Nr: 1032879 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 07-20 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable evaluation for right knee injury. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for fatigue and if so, whether the claim may be granted. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome). 4. Whether new and material evidence has been received to reopen a claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from June 1976 to September 1979, and from September 1990 to June 1991. He also had service in the National Guard, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2006, December 2007, and September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2010, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). FINDINGS OF FACT 1. A claim for service connection for narcolepsy/fatigue, to include as secondary to undiagnosed illness, was denied by a May 2005 Board decision that was not appealed. 2. A claim for service connection for unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome) was denied by a May 2005 Board decision that was not appealed. 3. A claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, was denied by a January 2007 rating decision that was not appealed. 4. The evidence submitted since the May 2005 Board decision pertinent to the claim for service connection for narcolepsy/fatigue, to include as secondary to undiagnosed illness, was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 5. There is objective evidence of chronic disability manifested by fatigue due to undiagnosed illness. 6. The evidence submitted since the May 2005 Board decision pertinent to the claim for service connection for unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome), is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 7. The evidence submitted since the January 2007 rating decision pertinent to the claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 8. The Veteran's service-connected right knee injury is manifested by symptoms of mild subluxation and/or lateral instability but not compensable limitation of motion and/or arthritis. CONCLUSIONS OF LAW 1. The May 2005 Board decision, which denied claims for service connection for narcolepsy/fatigue and unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome), is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002). 2. The January 2007 rating decision, which denied a claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2009). 3. New and material evidence has been submitted since the May 2005 Board decision pertinent to the claim for service connection for narcolepsy/fatigue, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2009). 4. Undiagnosed illness manifested by fatigue was incurred in active service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2009). 5. New and material evidence has not been submitted since the May 2005 Board decision pertinent to the claim for service connection for unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome), and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2009). 6. New and material evidence has not been submitted since the January 2007 rating decision pertinent to the claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 7. The criteria for a 10 percent rating, but not greater, for right knee injury has been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code (DC) 5257 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Prior to the adjudication of the claims to reopen, October 2007 and June 2008 letters advised the Veteran of the evidence necessary to substantiate a claim for service connection, including the type of evidence required to reopen his previously denied claims, advised of his and VA's respective duties, and asked to submit information and/or evidence, which would include that in his possession, to the RO. The content of these notices complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and Kent v. Nicholson, 20 Vet. App. 1 (2006). Each of these letters also advised the Veteran of the bases for assigning ratings and effective dates. With respect to the Veteran's increased rating claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. In Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), the Federal Circuit Court held that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's daily 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." A letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2005, prior to the RO decision that denied the claim in February 2006. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Further, in this case, the Veteran was provided with correspondence regarding what was needed to support his increased rating claim. Specifically, the October 2005 VCAA notice letter advised the Veteran that his statements and medical and employment records could be used to substantiate his claim, and the Veteran can reasonably be expected to have understood the applicable diagnostic codes provided in the May 2007 statement of the case and July 2007, September 2008, October 2008, and September 2009 supplemental statements of the case. Thus, given the October 2005, May 2007, July 2007, September 2008, October 2008, and September 2009 VA correspondence, the Veteran is expected to have understood what was needed to support his claim. Moreover, the Veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, at the time of his VA examination in November 2005, the Veteran stated that his disability did not prevent him from working and did not affect his activities of daily living, but that he would occasionally take Motrin and continue to work. Similarly, at the time of his VA examination in May 2007, the Veteran reported that his right knee disability would periodically interfere with his work but would not incapacitate him, and in March 2009, he indicated that he was able to work through the pain. In summary, the Board submits that the above statements and evidence demonstrate the Veteran's knowledge of the need to be worse to support his claim, with particular emphasis on an adverse impact on his employment, and that any notice deficiencies in this matter do not affect the essential fairness of the adjudication. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent post-service 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 service and VA treatment records. The Veteran was also afforded multiple VA examinations to support his increased rating claim, and the Veteran has not argued that the most recent VA examinations are inadequate for rating purposes. 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. The Veteran was also afforded an examination and etiological opinion with respect to his application to reopen the claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, and since 38 C.F.R. § 3.159(c)(4) does not apply to finally adjudicated claims unless new and material evidence has been received, and the Board has concluded that such evidence has not been received as to the application to reopen a claim for service connection for unexplained nerve loss and numbness of the hands, arms, legs, and feet (to include the current claim of bilateral carpal tunnel syndrome), the Board finds that an examination and etiological opinion is not warranted as to this claim. See 38 C.F.R. § 3.159(c)(4)(C)(iii). The Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran has also not claimed that VA has failed to comply with the requirements of the VCAA. II. New and Material Evidence Claims The record reflects that the claims for service connection for narcolepsy/fatigue and nerve loss and numbness of the hands, arms, legs, and feet were last denied by an unappealed Board decision in May 2005, at which time the Board determined that the Veteran's narcolepsy with fatigue, first clinically reported in 1993, was a diagnosed illness and not shown to be of service origin, and that there was no competent medical evidence to show that the Veteran had chronic disability manifested by nerve loss and numbness of the hands, arms, legs, and feet. A January 2007 rating decision denied a claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, on the basis that right elbow nerve damage had not been shown to be related to service or the Veteran's service-connected right elbow fracture, and the Veteran did not file a timely appeal following the issuance of a statement of the case in July 2007. See 38 C.F.R. § 20.302 (2009). As such, these claims for service connection may only be reopened if new and material evidence is submitted. Based on the grounds stated for the denials in the May 2005 Board decision, new and material evidence would consist of new evidence demonstrating that narcolepsy was not a "diagnosed" illness and/or narcolepsy/fatigue was of service origin, competent medical evidence showing that the Veteran has chronic disability manifested by nerve loss and numbness of the hands, arms, legs, and feet, and new evidence demonstrating that right elbow nerve damage was related to service or the Veteran's service-connected right elbow fracture. In this regard, additional evidence received since the May 2005 Board decision and January 2007 rating decision includes additional statements and testimony from the Veteran, additional VA examination and treatment records for the Veteran, and additional private treatment records for the Veteran. Of greatest import to the claims on appeal are examination records finding no objective evidence confirming the Veteran's subjective complaints of multiple location nerve loss and numbness involving the hands, arms, legs and feet; medical opinion evidence concluding that the Veteran does not suffer from narcolepsy; and medical opinion evidence concluding that any nerve damage specifically associated with the Veteran's right elbow is not related to the Veteran's service-connected right elbow fracture. May 2007 VA neurological examination of the right elbow revealed findings of sensory loss beyond the ulnar distribution that was considered inconsistent with ulnar neuropathy, and therefore unrelated to the Veteran's elbow fracture. The examiner also commented that an ulnar lesion would have been expected at the time of fracture, symptoms did not go back to the original injury, and electromyography (EMG) from the previous year was normal. With respect to the Veteran's narcolepsy/fatigue, a May 2007 nurse practitioner could propose no organic basis for the Veteran's fatigue. A nerve conduction/EMG from February 2008 was interpreted to suggest a right ulnar neuropathy at the elbow (retrocondylar groove), mild in degree, with slight slowing of conduction velocity in motor fibers and slight loss of sensory fibers. There was no evidence of brachial plexopathy, carpal tunnel syndrome, or other mononeuropathies involving the upper limbs. There was also no evidence of lower cervical radiculopathy affecting the muscles tested in the symptomatic right upper thumb. An April 2009 VA outpatient treatment record reflects a history of narcolepsy, with the Veteran noting his concern about this diagnosis and that at the time he may have had a sleep latency test conducted in the 1990's, he was told he had "probable narcolepsy." Finally, a June 2009 VA treatment record reflects an examiner's review of recent sleep test results and his impression that the Veteran was probably excessively sleepy, but that there was no evidence of narcolepsy. However, the Board cannot conclude that such evidence constitutes new and material evidence to reopen the claims for service connection for either nerve loss and numbness of the hands, arms, legs, and feet, or nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture. More specifically, with respect to the claim for service connection for nerve loss and numbness of the hands, arms, legs, and feet, there continues to be a lack of objective evidence of a multisystem illness characterized by nerve damage affecting the hands, arms, legs, and feet, and while the Veteran is competent to continue to complain of periodic numbness and a tingling sensation in the extremities, he is not competent to assess these complaints as constituting disability for which service connection may be granted, i.e., this is not the type of disability such as pes planus or varicose veins that the Veteran has been recognized by case law as being able to diagnose. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran's statements about continued numbness and tingling are cumulative of statements made at the time of the last final denial by the Board in May 2005, and are therefore not considered new. As for the Veteran's claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, the most relevant evidence is actually against the claim (the May 2007 VA neurological examiner's opinion) and it has been held that negative evidence does not constitute new and material evidence. Villalobos v. Principi, 3 Vet. App. 450 (1992). Moreover, the January 2007 rating decision essentially conceded that the Veteran had some form of nerve damage specifically around the right elbow at the time it denied the claim such that additional evidence suggesting right ulnar entrapment does not prove an "unestablished" fact that was a predicate for the previous final denial. Therefore, the Board finds that it has no alternative but to conclude that the additional evidence and material received in this case as to the claims for service connection for nerve loss and numbness of the hands, arms, legs, and feet, and nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, does not relate to an unestablished fact necessary to substantiate the claims and thus is not material. It is also not material because it is essentially redundant of assertions maintained at the time of the previous respective final denials in May 2005 and January 2007, and does not raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a) (2009). On the other hand, the Board finds that the recent VA report that does not confirm the existence of narcolepsy in the face of the Board's denial in May 2005 on the basis of a "diagnosed" illness, is found to be probative as to the existence of a known diagnosis under 38 C.F.R. § 3.317 (2009). Thus, the Board finds that it must conclude that this evidence is not merely cumulative or redundant, does relate to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Therefore, the Board concludes that the claim for service connection for fatigue as secondary to undiagnosed illness, is reopened. 38 C.F.R. § 3.156(a) (2009). III. Entitlement to Service Connection for Fatigue as Secondary to Undiagnosed Illness Having determined that evidence received since the last final denial warrants the reopening of the Veteran's claim for service connection for fatigue, the Board will now consider the claim on the merits. "[I]n order to establish service connection or service- connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of § 3.317 may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011 and by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (2009); 66 Fed. Reg. 56,614- 56,615 (Nov. 9, 2001). The Board further notes that, on December 27, 2001, the President signed into law H.R. 1291, the Veterans Education and Benefits Expansion Act of 2001, Public Law No. 107-103, 115 Stat. 976, which contains, among other things, new provisions relating to Persian Gulf War veterans. Section 202 of the new statute expands compensation availability for Persian Gulf vets to include "medically unexplained chronic multisymptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, in addition to any diagnosed illness that the Secretary determines by regulation to be service-connected. These changes in law were effective on March 1, 2002. The Board has carefully reviewed the record and initially notes that the evidence reflects multiple diagnoses relating to the Veteran's symptoms of fatigue, both of unclear and more definitive etiology. Thus, the Board finds that the requirement of a current disability has been met with respect to this claim. In addition, although the Board has considered the fact that such evidence could constitute known diagnoses that would preclude entitlement to service connection for chronic disability manifested by fatigue as an undiagnosed illness under 38 C.F.R. § 3.317 (2009), the Board finds that a careful review of the record does not reflect consistent diagnoses and in light of the most recent testing that did not confirm narcolepsy, the findings of sleepiness are not currently associated with the known diagnosis of narcolepsy. The Board also notes there is no medical opinion that specifically states that the Veteran does not have chronic fatigue that is related to his service in the Persian Gulf. In summary, based on all of the above, the Board finds that the evidence supports the grant of service connection for disability manifested by fatigue as a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 C.F.R. § 3.317(a)(2)(i)(B) (2009). IV. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A more recent decision of the Court, however, has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider whether the rating should be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed - so, here, October 2004, until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2009). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). Service connection for right knee injury was granted by the February 1993 rating decision, at which time a noncompensable rating was assigned, effective from June 1991, under the diagnostic criteria for recurrent subluxation and lateral instability, DC 5257. Degenerative or traumatic arthritis established by X- ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. With respect to knee disabilities, Diagnostic Codes 5260 and 5261 set forth rating schedules for limitation of motion of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. With respect to limitation of leg flexion, Diagnostic Code 5260 allows a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261, which governs limitation of extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Other impairments of the knee are rated pursuant to DC 5257, which provides ratings of 10, 20 and 30 percent for slight, moderate, and severe recurrent subluxation or lateral instability, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA General Counsel, in a precedential opinion (VAOPGCPREC 23- 97), held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. The General Counsel stated that when a knee disorder was already rated under DC 5257, the Veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. The General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under DC 5257 can also be compensated under DC 5003 and vice versa. In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45 (2009). The Veterans Claims Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare- ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. In addition, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59. VA joints examination in November 2005 revealed that the Veteran reported taking Motrin for his right knee pain. He did not describe true flare-ups of the knee, but did indicate that he wore a brace at times for his knee. He denied dislocation or recurrent subluxation. He did relate episodes when it gave out and swelling. Physical examination revealed no effusion but generalized joint tenderness. There was no evidence of meniscal tear. His range of motion was from 0 to 140 degrees without pain. This motion was not further limited by repetitive use. Knee x-rays were normal. VA joints examination in May 2007 revealed that the Veteran experienced flare-ups at the rate of every other day. They were usually provoked by prolonged standing and walking, and would last for two hours or so. Associated symptoms included weakness and stiffness of the knee. It would also sometimes give way. Currently, he wore a neoprene brace for support. He indicated that the knee pain interfered with work but did not incapacitate him. Physical examination revealed no evidence of deformity, crepitus, or effusion. His patella was nontender. The range of motion was from 0 to 130 degrees. There was discomfort on the right knee at the end of passive movement, particularly the flexion exhibited by muscle guarding. Stability testing was found to be normal. Motion was not additionally limited by repetitive movement. X-rays of the right knee were negative. The overall impression included mild degree of residual sprain and strain of right knee. Private medical records from June 2008 reflect diagnoses that included generalized arthritis, but no specific diagnosis of arthritis with respect to the right knee. VA joints examination in March 2009 indicated that he had been recently evaluated by a rheumatologist who believed he had arthritis in the right knee. The Veteran again reported increased right knee pain with prolonged sitting, standing or walking. He stated that there was occasional locking. There also continued to be occasions of giving way. He also continued to use a knee brace. Physical examination revealed the Veteran's knee brace, which was removed for purposes of the examination. The range of motion was from 0 to 130 degrees, without pain or increased limitation following repetitive use. There was tenderness over the area of the anterolateral joint line. Due to the Veteran's reports of locking, magnetic resonance imaging (MRI) and x-rays were ordered, and both were found to be unremarkable. The impression was service-connected residuals of right knee injury. The Board has reviewed all of 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 of record. Indeed, it has been held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the Veteran seeks an increased evaluation for his right knee disorder, which is currently rated as noncompensable pursuant to DC 5257. After a careful review of the medical evidence of record, it should first be noted that entitlement to a rating under Diagnostic Codes 5258 and 5259 for cartilage dislocation or removal is not for consideration as there is no evidence of dislocated or removed cartilage. Moreover, range of motion findings do not support ankylosis. As such, the evidence does not show that a higher rating under DC 5256 is warranted. As no examination noted malunion of the tibia or fibula, DC 5262 is also not for application. With respect to entitlement to separate ratings for limitation of flexion under DC 5260 or limitation of extension under DC 5261, examination has not revealed range of motion of the right knee to be less than 0 to 130 degrees, with pain, at worst, demonstrated at the extremes of motion without additional pain on repetitive use. Flexion of 0 to 140 degrees and extension to 0 degrees are considered anatomically normal. 38 C.F.R. § 4.71a, Plate II. Thus, there is no limitation of extension that could provide a basis to assign a compensable or separate rating for limited extension, and while more recent examination revealed some limitation of flexion, this was not even close to the limitation of 45 degrees required for a 10 percent rating under DC 5261. There is also no additional motion that is not already considered in the current rating that could provide a compensable rating based on pain on right knee motion, and no additional pain on motion due to repetitive use. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.7, 4.40, 4.45. In addition, although the Veteran's rheumatologist has diagnosed generalized arthritis, his records do not reflect x-ray findings of arthritis with respect to the Veteran's right knee, and none have been shown on VA MRI and x-rays. Thus, the Board finds that the diagnostic criteria for arthritis are not for application here. Parenthetically, as was noted above, even if the Board were to find that arthritis were associated with the Veteran's right knee disability, it would still not help the Veteran's claim because General Counsel has stated that when a knee disorder was already rated under DC 5257 (as it is here), the Veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis, and no such limitation is demonstrated in the record. However, with respect to Diagnostic Code 5257, although clinical examination has not revealed any objective findings of recurrent subluxation or lateral instability, the examiners have all noted that the Veteran is wearing a brace for support, and that he has reported periodic symptoms of giving way, and more recently, locking. Therefore, giving the Veteran the benefit of the doubt, the Board finds that he is entitled to a 10 percent rating, but not greater, for slight knee impairment under DC 5257. The Board also finds that although the Veteran has a 10 percent rating for multiple joint pain, the record reflects that this is based on systemic symptoms of multisymptom joint pain, and not pain specifically associated with the Veteran's right knee injury during service. Therefore, the Board does not find that the assignment of such a rating is prohibited as pyramiding under 38 C.F.R. § 4.14 (2009). Clearly, however, the lack of objective clinical findings of subluxation or instability preclude the assignment of an even higher rating for moderate or severe knee impairment under DC 5257. In addition, the Board would point out that the rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2009). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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. During the relevant time period on appeal, the Veteran's symptoms associated with his service-connected right knee disorder have resulted in some instability in the right knee and noncompensable limitation of flexion with pain. Such impairment is contemplated by the applicable rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5257. The rating criteria reasonably describe the Veteran's disability. Referral for consideration of an extraschedular rating is, therefore, not warranted. ORDER New and material evidence not having been submitted, the application to reopen the claim for service connection for nerve loss and numbness of the hands, arms, legs, and feet, to include as secondary to undiagnosed illness, is denied. New and material evidence not having been submitted, the application to reopen the claim for service connection for nerve damage, right elbow, as secondary to service-connected residuals, right elbow fracture, is denied. Service connection for disability manifested by fatigue is granted. Entitlement to a 10 percent rating, but not greater, for right knee injury, is granted, subject to the statutes and regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs