Citation Nr: 1034068	
Decision Date: 09/10/10    Archive Date: 09/21/10

DOCKET NO.  05-07 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen the claim of entitlement to service connection for a right 
knee disorder.

2.  Entitlement to an increased rating for a right ankle 
disability, currently evaluated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Arif Syed, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1966 to May 1968.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a September 2004 rating decision by the Department 
of Veterans Affairs (VA) Regional Office in Detroit, Michigan 
(RO).

In February 2009, the Board remanded the Veteran's claims.  The 
Appeals Management Center (AMC) continued the previous denial of 
the claims in a February 2010 supplemental statement of the case 
(SSOC).  Accordingly, the Veteran's VA claims folder has been 
returned to the Board for further appellate proceedings.


FINDINGS OF FACT

1.  In an unappealed March 1969 rating decision, the RO denied 
the Veteran's claim of entitlement to service connection for a 
right knee disability. 

2.  Evidence submitted since the March 1969 rating decision is 
cumulative or redundant of the evidence of record at the time of 
the prior final denial of the claim sought to be reopened, and 
does not raise a reasonable possibility of substantiating the 
claim.  

3.  The Veteran's service-connected right ankle disability is 
manifested by complaints of pain and giving out; marked 
limitation of motion is not shown.

4.  The competent medical evidence does not show that the 
Veteran's service-connected right ankle disability is so 
exceptional or unusual that referral for extraschedular 
consideration by a designated authority is required.



CONCLUSIONS OF LAW

1.  The March 1969 rating decision denying service connection for 
a right knee disability is final.  38 U.S.C.A. § 7105 (West 
2002); 38 C.F.R. § 20.1103 (2009).

2.  Since the March 1969 rating decision, new and material 
evidence has not been received, and the claim of entitlement to 
service connection for a right knee disability is not reopened.  
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009).

3.  The criteria for assignment in excess of the currently 
assigned 10 percent disability rating for the service-connected 
right ankle disability have not been met. 38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2009).

4.  Application of the extraschedular rating provisions is not 
warranted for the Veteran's service-connected right ankle 
disability. 38 C.F.R. § 3.321(b) (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks entitlement to service connection for a right 
knee disability.  Implicit in his claim is the contention that 
new and material evidence which is sufficient to reopen the 
previously-denied claim has been received.  The Veteran also 
seeks entitlement to an increased disability rating for his 
service-connected right ankle disability  

In the interest of clarity, the Board will discuss certain 
preliminary matters.  The issues on appeal will then be analyzed 
and a decision rendered.

Stegall concerns

As indicated above, in February 2009, the Board remanded these 
claims and ordered the agency of original jurisdiction (AOJ) to 
provide proper notice to the Veteran under the Veterans Claims 
Assistance Act of 2000 (VCAA), as well as schedule the Veteran 
for a VA examination pertaining to his service-connected right 
ankle disability and associate a report of the examination with 
the Veteran's claims folder.  The Veteran's claims were then to 
be readjudicated.  

Pursuant to the Board's remand instructions, the Veteran was 
provided appropriate VCAA notice.  This will be discussed in 
greater detail below.  Additionally, the Veteran was afforded a 
VA examination pertaining to his service-connected right ankle 
disability.  A report of the examination has been associated with 
the Veteran's claims folder.  The Veteran's right knee and right 
ankle claims were readjudicated via the February 2010 SSOC.  

Accordingly, the Board's remand instructions have been complied 
with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where 
the remand orders of the Board are not complied with, the Board 
errs as a matter of law when it fails to ensure compliance].  

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the Veterans Claims 
Assistance Act of 2000 (VCAA).  The VCAA includes an enhanced 
duty on the part of VA to notify a claimant as to the information 
and evidence necessary to substantiate a claim for VA benefits.  
The VCAA also redefines the obligations of VA with respect to its 
statutory duty to assist a claimant in the development of his 
claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).

For a claim to reopen, such as the Veteran's claim of service 
connection for a right knee disability, the VCAA appears to have 
left intact the requirement that a veteran must first present new 
and material evidence in order to reopen a previously and finally 
denied claim under 38 U.S.C.A. § 5108 before the Board may 
determine whether the duty to assist is fulfilled and proceed to 
evaluate the merits of that claim.  It is specifically noted that 
nothing in the VCAA shall be construed to require VA to reopen a 
claim that has been disallowed except when new and material 
evidence is presented or secured, as described in 38 U.S.C.A. § 
5108.  See 38 U.S.C.A. § 5103A(f) (West 2002).

Once the claim is reopened, the VCAA provides that VA shall make 
reasonable efforts to assist a claimant in obtaining evidence 
necessary to substantiate a veteran's claim for benefits under a 
law administered by the Secretary, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  38 U.S.C.A. § 5103A (West 2002).

Therefore, with respect to the claim to reopen, the VCAA standard 
of review and duty to notify does not apply to the merits of the 
underlying claim of entitlement to service connection for a right 
knee disability unless the claim is reopened.  See Holliday v. 
Principi, 14 Vet. App. 280 (2000) [the Board must make a 
determination as to the applicability of the various provisions 
of the VCAA to a particular claim].

The VCAA alters the legal landscape in three distinct ways: 
standard of review, notice, and duty to assist.  The Board will 
now address these concepts within the context of the 
circumstances presented in this case.

Standard of review

After the evidence is assembled, it is the Board's responsibility 
to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 
2002).  When there is an approximate balance of evidence 
regarding the merits of an issue material to the determination of 
the matter, the benefit of the doubt in resolving each issue 
shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 
2002); 38 C.F.R. §§ 3.102, 4.3 (2009).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United 
States Court of Appeals for Veterans Claims (Court) stated that 
"a veteran need only demonstrate that there is an 'approximate 
balance of positive and negative evidence' in order to prevail."  
To deny a claim on its merits, the preponderance of the evidence 
must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 
519 (1996), citing Gilbert, 1 Vet. App. at 54.


Notice

The Veterans Claims Assistance Act of 2000 (VCAA), codified in 
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 
2009), and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2009), provide that VA will assist a claimant in 
obtaining evidence necessary to substantiate a claim but is not 
required to provide assistance to a claimant if there is no 
reasonable possibility that such assistance would aid in 
substantiating the claim.  They also require VA to notify the 
claimant and the claimant's representative, if any, of any 
information, and any medical or lay evidence, not previously 
provided to the Secretary that is necessary to substantiate the 
claim.  As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States 
Court of Appeals for Veterans Claims (the Court) specifically 
addressed VCAA notice requirements in the context of a veteran's 
request to reopen a previously and finally denied claim. The 
Court found that VA must notify a claimant of the evidence and 
information that is necessary to reopen the claim, and must 
provide notice that describes what evidence would be necessary to 
substantiate the element or elements required to establish 
service connection that were not found in the previous denial.

The Board also notes that the United States Court of Appeals for 
Veterans Claims (Court) has held that the plain language of 38 
U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to 
the VCAA be provided "at the time" that, or "immediately after," 
VA receives a complete or substantially complete application for 
VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 
112, 119 (2004).

In the case at hand, the record reflects that the originating 
agency provided the Veteran with the required notice by letters 
mailed in May 2004 and March 2009, and notice with respect to the 
effective-date element of the claim, by a letter mailed in 
February 2010.  Although the March 2009 VCAA letter as well as 
the February 2010 letter pertaining to the effective-date element 
of the claim were provided after the initial adjudication of the 
claim, the Board finds that the Veteran has not been prejudiced 
by the timing of these letters.  See Bernard v. Brown, 4 Vet. 
App. 384, 394 (1993).  In this regard, the Board notes that 
following the provision of the required notice and the completion 
of all indicated development of the record, the AMC readjudicated 
the Veteran's claims in the February 2010 SSOC.  See Overton v. 
Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be 
cured by a new VCAA notification followed by a readjudication of 
the claim).  There is no indication or reason to believe that the 
ultimate decision of the originating agency on the merits of the 
claim would have been different had complete VCAA notice been 
provided at an earlier time.

Additionally, the May 2005 letter informed the Veteran as to the 
reason his right knee disability claim was previously denied:  
"[y]our claim was previously denied because no evidence of 
injury to knees during service ... Therefore, the evidence you 
submit must relate to this fact."  As such, the Veteran was 
adequately advised of the basis for the previous denial and of 
what evidence would be new and material to reopen the claim.  See 
Kent, supra.

The Board is cognizant of the fact that that the Veteran was not 
provided notice with respect to the effective date element of his 
claims until issuance of the February 2010 SSOC.  In Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), the Court observed that a 
claim of entitlement to service connection consists of five 
elements:  (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.  Because a 
service connection claim is comprised of five elements, the Court 
further held that the notice requirements of section 5103(a) 
apply generally to all five elements of that claim.  Therefore, 
upon receipt of an application for a service connection claim, 
section 5103(a) and section 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and evidence 
not previously provided, if any, will assist in substantiating or 
is necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  This includes notice 
that a disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.

Crucially, however, the Board observes that the Veteran responded 
to the February 2010 SSOC stating that he had no further 
information or evidence to submit.  See the Veteran's SSOC Notice 
Response dated in February 2010.  Additionally, the Veteran's 
representative indicated in the March 2010 Statement of 
Accredited Representative that he had no further argument.  
Indeed, the Veteran's representative has not alleged that he 
Veteran has received inadequate VCAA notice.  See Goodwin v. 
Peake, 22 Vet. App. 28 (2008) [holding as to the notice 
requirements for downstream earlier effective date claims 
following the grant of service connection: "that where a 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 the downstream elements"]; 
see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  The 
Veteran is obviously aware of what is required of him and of VA.  
Because there is no indication that there exists any evidence 
which could be obtained which would have an effect on the outcome 
of this case, no further VCAA notice is necessary.  See Dela Cruz 
v. Principi, 
15 Vet. App. 143, 149 (2001) [VCAA notice not required where 
there is no reasonable possibility that additional development 
will aid the veteran].

Duty to assist

In general, the VCAA provides that VA shall make reasonable 
efforts to assist a claimant in obtaining evidence necessary to 
substantiate a claim for VA benefits, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  The law affords that the assistance 
provided by VA shall include providing a medical examination or 
obtaining a medical opinion when such an examination or opinion 
is necessary to make a decision on the claim.  
See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).  

In the instant case, the Board finds reasonable efforts have been 
made to assist the Veteran in obtaining evidence necessary to 
substantiate his claims.  There is no reasonable possibility that 
further assistance would aid in substantiating the claims.  The 
pertinent evidence of record includes statements from the Veteran 
and his wife, the Veteran's service treatment records, Social 
Security Administration (SSA) records, as well as VA and private 
treatment records.  

The Veteran was afforded VA examinations with respect to his 
right ankle in June 2004 and September 2009.  The examination 
reports reflect that the examiner interviewed and examined the 
Veteran, reviewed his past medical history, documented his 
current medical conditions, and rendered appropriate diagnoses 
consistent with the remainder of the evidence of record.  
Furthermore, these examination reports contain sufficient 
information to rate the Veteran's right ankle disability under 
the appropriate diagnostic criteria.  The Board therefore 
concludes that the VA examination reports are adequate for 
evaluation purposes.  See 38 C.F.R. § 4.2 (2009); see also Barr 
v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA 
undertakes to provide a VA examination or obtain a VA opinion, it 
must ensure that the examination or opinion is adequate].  

The Board notes that the Veteran was not provided a recent VA 
examination and nexus opinion with regard to his claim for a 
right knee disability.  However, to the extent that this claim 
involves an attempt to reopen a previously disallowed claim, VA 
does not have a duty to provide the Veteran with medical 
examination and opinion in response to a claim to reopen as it is 
the Veteran's responsibility in such a claim to generate new and 
material evidence that would warrant a reopening of the claim.  
See Paralyzed Veterans of America v. Secretary of Veterans 
Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003) (upholding 
validity of 3.159(c)(4)(C)(iii) and finding that, "without the 
introduction of new and material evidence, VA is not required to 
provide a medical examination or opinion").  See also Woehlaert 
v. Nicholson, 21 Vet. App. 456 (2007).

The Board observes with concern that the Veteran has been asked 
to provide VA with specific details, to include approximate 
dates, hospital name(s), and approximate location, with regard to 
his 1967 in-service hospitalization for a right knee injury.  See 
a VCAA letter from the AMC dated in March 2009.  The Veteran did 
not respond.  Nor did he respond with any of the above 
information in the May 2004 VCAA letter.  

The Court has held that the duty to assist "is not always a one-
way street" and that, "[i]f a veteran wishes help, he cannot 
passively wait for it in those circumstances where he may or 
should have information that is essential in obtaining the 
putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 
(1991).  Without sufficient input from the Veteran, efforts to 
obtain these records would be futile.  See Gobber v. Derwinski, 2 
Vet. App. 470, 472 (1992) [VA's duty to assist is not a license 
for a "fishing expedition" to determine if there might be some 
unspecified information which could possibly support a claim].

The Board finds that under the circumstances of this case, VA has 
satisfied the notification and duty to assist provisions of the 
law and that no further action pursuant to the VCAA need be 
undertaken on the Veteran's behalf.

The Board additionally observes that all appropriate due process 
concerns have been satisfied.  See 38 C.F.R. § 3.103 (2009).  The 
Veteran has been accorded the opportunity to present evidence and 
argument in support of his claims.  He has retained the services 
of a representative.  With respect to the Veteran's right knee 
disability claim, the Veteran presented sworn testimony before 
the RO hearing officer in April 2005.  A copy of the transcript 
of the hearing has been associated with the Veteran's VA claims 
folder.  He has not requested a hearing as to the right ankle 
disability claim.

Accordingly, the Board will proceed to a decision.

Service connection for a Right Knee Disability

Pertinent legal criteria

Generally, service connection may be granted for disability or 
injury incurred in or aggravated by active military service.  See 
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009).

For certain chronic disorders, including arthritis, service 
connection may be granted if the disease becomes manifest to a 
compensable degree within one year following separation from 
service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 
C.F.R. §§ 3.307, 3.309 (2009).

In order to establish service connection for the claimed 
disorder, there must be 
(1) medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence of a 
nexus between the claimed in-service disease or injury and the 
current disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).  The determination as to whether these requirements are 
met is based on an analysis of all the evidence of record and the 
evaluation of its credibility and probative value.  See Baldwin 
v. West, 13 Vet. App. 1, 8 (1999).

In order to show a chronic disease in service there is required a 
combination of manifestations sufficient to identify the disease 
entity, and sufficient observation to establish chronicity at the 
time, as distinguished from merely isolated findings or a 
diagnosis including the word "chronic."  When the fact or 
chronicity in service is not adequately supported, then a showing 
of continuity after discharge is required to support a claim.  
There must be competent medical evidence unless the evidence 
relates to a condition as to which lay observation is competent 
to identify its existence.  See 38 C.F.R. § 3.303(b) (2009).

A veteran will be considered to have been in sound condition when 
examined, accepted and enrolled for service, except as to 
defects, infirmities, or disorders noted at entrance into 
service, or where clear and unmistakable (obvious or manifest) 
evidence demonstrates that an injury or disease existed prior 
thereto.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) 
(2009).

VA's General Counsel has held that to rebut the presumption of 
sound condition under 38 U.S.C. § 1111, VA must show by clear and 
unmistakable evidence both that the disease or injury existed 
prior to service and that the disease or injury was not 
aggravated by service.  See VAOPGCPREC 3-2003 (July 16, 2003); 
see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  
The Court has held, however, that this presumption attaches only 
where there has been an entrance examination in which the later 
complained-of disability was not detected.  See Bagby v. 
Derwinski, 1 Vet. App. 225, 227 (1991).  In VAOPGCPREC 3-2003, 
VA's General Counsel noted that "[u]nder the language of [38 
U.S.C. § 1111], VA's burden of showing that the condition was not 
aggravated by service is conditioned only upon a predicate 
showing that the condition in question was not noted at entry 
into service."

Cases in which the condition is noted on entrance are, however, 
still governed by the presumption of aggravation contained in 38 
U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 
1111 where the complained of condition was not noted on entrance 
into service).  This statute provides that a pre-existing injury 
or disease will be considered to have been aggravated by active 
service where there is an increase in disability during such 
service, unless clear and unmistakable evidence shows that the 
increase in disability is due to the natural progress of the 
disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 
(2009).

Aggravation may not be conceded where the disability underwent no 
increase in severity during service on the basis of all the 
evidence of record pertaining to the manifestations of the 
disability prior to, during, and subsequent to service.  38 
U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2009).

A pre-existing disease or injury will be presumed to have been 
aggravated by service only if the evidence shows that the 
underlying disability underwent an increase in severity; the 
occurrence of symptoms, in the absence of an increase in the 
underlying severity, does not constitute aggravation of the 
disability.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. 
Cir. 2002); 38 C.F.R. § 3.306(a) (2009).

Aggravation is characterized by an increase in the severity of a 
disability during service, and a finding of aggravation is not 
appropriate in cases where the evidence specifically shows that 
the increase is due to the natural progress of the disease. 
Furthermore, temporary or intermittent flare-ups of a pre-
existing disease during service are not sufficient to be 
considered aggravation of the disease unless the underlying 
condition, as contrasted to symptoms, worsens.  See Jensen v. 
Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. 
App. 292 (1991).

In general, VA rating decisions that are not timely appealed are 
final.  
See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 
Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be 
reopened when new and material evidence is presented or secured 
with respect to that claim.

New evidence is defined as evidence not previously submitted to 
agency decision-makers.  Material evidence means existing 
evidence that, by itself or when considered with previous 
evidence of record, relates to an unestablished fact necessary to 
substantiate the claim.  New and material evidence can be neither 
cumulative nor redundant of the evidence of record at the time of 
the last prior final denial of the claim sought to be reopened, 
and must raise a reasonable possibility of substantiating the 
claim.  See 38 C.F.R. § 3.156(a) (2009).

An adjudicator must follow a two-step process in evaluating a 
previously denied claim.  First, the adjudicator must determine 
whether the evidence added to the record since the last final 
decision is new and material.  If new and material evidence is 
presented or secured with respect to a claim that has been 
finally denied, the claim will be reopened and decided upon the 
merits.  Once it has been determined that a claimant has produced 
new and material evidence, the adjudicator must evaluate the 
merits of the claim in light of all the evidence, both new and 
old, after ensuring that the VA's statutory duty to assist the 
appellant in the development of his claim has been fulfilled.  
See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 
209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 
(1999).

There must be new and material evidence as to each and every 
aspect of the claim that was lacking at the time of the final 
denial in order for there to be new and material evidence to 
reopen the claim.  See Evans v. Brown, 9 Vet. App. 273 (1996).





Claim to Reopen

When the Veteran's claim of entitlement to service connection for 
a right knee disability was denied by the RO in March 1969, the 
following pertinent evidence was of record.

The Veteran's October 1963 service pre-induction examination 
report indicated that the Veteran was physically disqualified 
from military duty for a recent right knee menesectomy and 
complaints of swelling.  He was similarly disqualified for 
military duty in an August 1964 service pre-induction examination 
due to soft tissue swelling at the tibia.  An August 1964 report 
from M.K., M.D., indicated that the Veteran injured his left leg 
in an automobile accident in May 1963.  Although Dr. M.K. noted 
that discoloration of the injured area had subsided, painless 
swelling of the area persisted, and the Veteran reported extreme 
weakness of both legs, particularly the left leg after working 
all day.  

The Veteran's February 1966 service pre-induction examination 
revealed "good" range of motion and "minimal crepitus" in the 
Veteran's right knee.  Further, the Veteran's April 1968 
separation from service examination documented the Veteran's 
complaints of swollen or painful joints, leg cramps, and 
"trick" or locked knee.  There is no indication as to which 
knee the Veteran was referring to.  However, the Veteran reported 
that he had cartilage removed in his right knee when he was 19 
years old.   

The Veteran was afforded a VA examination in December 1968.  He 
reported a history of surgery to his right knee prior to service, 
and that the right knee gave out on him sometime in October 1967 
which caused him to fall, straining his left knee and left ankle 
which required a cast.  He further reported trouble with his 
right knee to include swelling, although he also stated that his 
right knee had not given him any trouble for several months after 
the initial symptoms from his in-service fall.  Upon physical 
examination, the VA examiner noted a post-operative scar on the 
Veteran's right knee.  However, he reported no swelling or 
tenderness of the Veteran's right knee, and that it was 
asymptomatic.  An X-ray report of the Veteran's right knee was 
negative.  The Veteran was diagnosed with a post-operative scar 
of the right knee.   

In its March 1969 rating decision, the RO denied the Veteran's 
claim of entitlement to service connection for a right knee 
disability because "service records show no injury to [the right 
knee].  The [V]eteran has history of knee injury prior to his 
military service."    

The Veteran was informed of the March 1969 rating decision and of 
his appeal rights by a letter from the RO dated in April 1969.  
He failed to initiate an appeal with the timely submission of a 
notice of disagreement (NOD), and the decision became final.

In February 2004, the RO received the Veteran's claim of 
entitlement to service connection for a right knee disability.  
After the RO declined to reopen the Veteran's previously denied 
claim based upon his failure to submit new and material evidence, 
this appeal followed.

The evidence which has been added to the record since the March 
1969 rating decision will be discussed in the Board's analysis 
below.

In essence, the RO denied the Veteran's claim in March 1969 
because the evidence failed to show that his pre-existing right 
knee disability underwent an increase in severity during his 
active military service.

The unappealed March 1969 RO rating decision is final.  See 38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2009).  
As explained above, the Veteran's claim for service connection 
may be reopened only upon the submission of new and material 
evidence.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 
(2009).  

The Board notes that the RO declined to reopen the Veteran's 
claim in the September 2004 rating decision.  Notwithstanding the 
RO's actions, it is incumbent on the Board to adjudicate the new 
and material issue before considering the claim on its merits. 
The question of whether new and material evidence has been 
received is one that must be addressed by the Board.  See Barnett 
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a 
previously adjudicated claim, the Board must determine that new 
and material evidence was presented or secured for the claim, 
making RO determination in that regard irrelevant].

After a thorough review of the entire record, and for the reasons 
expressed immediately below, the Board concludes that new and 
material evidence sufficient to reopen the claim of entitlement 
to service connection for a right knee disability has not been 
submitted.  In the present case, the unestablished facts are 
whether the Veteran's right knee disability aggravated by 
military service.  

The newly added evidence, in pertinent part, consists of VA 
treatment records from February 2003 to January 2004, private 
treatment records dated from August 1987 to March 2009, VA 
examination reports dated in June 2004 and September 2009, SSA 
records, statements from the Veteran's wife, and statements from 
the Veteran, to include his testimony at an April 2005 DRO 
hearing.  

The VA and private treatment records document multiple diagnoses 
of a right knee disability, to include status post right total 
knee arthroplasty.  See, e.g., a private treatment record from 
C.S., D.O., dated in October 2002.  While these medical records 
are undoubtedly new, as they were not of record at the time of 
the March 1969 rating decision, these records essentially 
replicate the medical evidence which was of record at the time of 
the March 1969 rating decision, namely that the Veteran has a 
current right knee disability.  Such evidence is not new and 
material, since the existence of the disability was known in 
March 1969.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); 
Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence 
that merely documents continued diagnosis and treatment of 
disease, without addressing the crucial matter of medical nexus, 
does not constitute new and material evidence].  These records do 
not establish or suggest aggravation of the Veteran's right knee 
disability during service.  There is no competent medical 
evidence which has been added to the record subsequent to the 
March 1969 RO denial which suggests that the Veteran's current 
right knee disability was aggravated by military service.  

The Board notes the Veteran's recent contentions that he injured 
his right knee when he fell down a hill during service in Korea 
in 1967.  See, e.g., the April 2005 DRO hearing transcript, page 
4.  However, his history of an inservice fall was of record at 
the time of the prior denial.  Accordingly, this information is 
cumulative of information that was before adjudicators at the 
time of the prior decision.  
  
The Board also notes the October 2004 statement from the 
Veteran's spouse indicating that she received letters from the 
Veteran while he was stationed at Camp Howse in Korea indicating 
that he had an accident (a fall) which caused pain in his knee 
and that he experienced pain in his knee while stationed in 
Alabama.  However, these statements are also duplicative of the 
reported history of the inservice knee injury as stated by the 
Veteran which was of record at the time of the prior denial.  In 
short, there is no competent evidence of an inservice right knee 
injury which aggravated the Veteran's pre-existing right knee 
disability beyond its natural progression.  

The Board notes that the Veteran, while entirely competent to 
report his symptoms both current and past (including pain in his 
right knee), has presented no competent evidence of in-service 
aggravation of his pre-existing right knee disability beyond its 
natural progression which was the evidence lacking at the time of 
the original denial of his claim.  Furthermore, the Board finds 
that the Veteran and his wife, as lay persons, are not competent 
to associate any of his claimed symptoms to the claimed knee 
injury during service.  That is, neither is competent to opine on 
matters such as aggravation of his current right knee disability.  
Such opinion requires specific medical training and is beyond the 
competency of the Veteran or any other lay person.  See also 38 
C.F.R. § 3.159(a)(1) (2009) [competent medical evidence means 
evidence provided by a person who is qualified through education, 
training, or experience to offer medical diagnoses, statements, 
or opinions].  Accordingly, the statements offered by the Veteran 
and his wife in support of his own claim are not competent 
evidence of aggravation and are insufficient to reopen the claim.

Furthermore, with regard to recent testimony from the Veteran to 
the effect that his right knee disability was aggravated by his 
military service, such evidence is cumulative and redundant of 
similar statements made prior to the March 1969 rating decision.  
Accordingly, such statements are not new.  See Reid v. Derwinski, 
2 Vet. App. 312, 315 (1992).

Moreover, in Moray v. Brown, 5 Vet. App. 211, 214 (1993), the 
Court specifically stated that laypersons, such as the Veteran 
and his wife, are not competent to offer medical opinions, and 
that such evidence does not provide a basis on which to reopen a 
claim for service connection.  In Routen v. Brown, 10 Vet. App. 
183, 186 (1997), the Court noted, "[l]ay assertions of medical 
causation . . . cannot suffice to reopen a claim under 
38 U.S.C.A. § 5108."

The Veteran has been accorded ample opportunity to submit new and 
material evidence, to include competent medical evidence and 
information specifically stating where he was treated for his 
claimed in-service right knee injury.  He has failed to do so.  
See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to 
submit evidence in support of his claim].

In short, the element which was missing at the time of the March 
1969 denial of service connection remains lacking.  In reaching 
this conclusion, the Board observes that the June 2004 VA 
examination report incorrectly notes that the Veteran's is 
service connected for his right knee condition.   However, the 
examiner did not provide an opinion as to whether the Veteran's 
knee disability was aggravated by service.  Likewise, the 
September 2009 examiner, while noting the Veteran's reported 
history of an in-service injury to his right knee, did not 
provide an opinion as to whether the Veteran's knee disability 
was aggravated during service.   Accordingly, neither examination 
report is material to the issue of whether the Veteran's right 
knee disability was aggravated during service.  Accordingly, 
neither the June 2004 VA examination report, nor the September 
2009 examination report, are sufficient to reopen the claim.  

 New and material evidence has not been received, and the 
Veteran's claim of entitlement to service connection for a right 
knee disability may not be reopened.  The benefit sought on 
appeal remains denied.  


Higher evaluation for Right Ankle Disability

Disability ratings are assigned in accordance with the VA's 
Schedule for Rating Disabilities and are intended to represent 
the average impairment of earning capacity resulting from 
disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.321(a), 4.1 (2009).  Separate diagnostic codes identify the 
various disabilities.  See 38 C.F.R. Part 4 (2009).

Where there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the disability 
picture more nearly approximates the criteria required for that 
rating.  Otherwise, the lower rating will be assigned.  
See 38 C.F.R. § 4.7 (2009).

A request for an increased rating must be viewed in light of the 
entire relevant medical history.  See 38 C.F.R. § 4.1 (2009); see 
also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991).  However, 
where entitlement to compensation has already been established 
and 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).

In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held 
that "staged ratings are appropriate for an increased-rating 
claim when the factual findings show distinct time periods where 
the service-connected disability exhibits symptoms that would 
warrant different ratings."

The evaluation of a service-connected disability involving a 
joint rated on limitation of motion requires adequate 
consideration of functional loss due to pain under 38 C.F.R. 
§ 4.40 and functional loss due to weakness, fatigability, 
incoordination or pain on movement of a joint under 38 C.F.R. 
§ 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluations is the ability of the body as 
a whole to function under the ordinary conditions of daily life, 
including employment.  See 38 C.F.R. § 4.10 (2009).  Disability 
of the musculoskeletal system is primarily the inability to 
perform the normal working movements of the body with normal 
excursion, strength, speed, coordination and endurance.  See 
38 C.F.R. § 4.40 (2009).  Consideration is to be given to whether 
there is less movement than normal, more movement than normal, 
weakened movement, excess fatigability, incoordination, pain on 
movement, swelling, deformity, atrophy of disuse, instability of 
station, or interference with standing, sitting, or weight 
bearing.  See 38 C.F.R. § 4.45 (2009).

The RO has rated the Veteran's disability under Diagnostic Codes 
5299-5271.  See 38 C.F.R. § 4.27 [hyphenated diagnostic codes are 
used when a rating under one diagnostic code requires use of an 
additional diagnostic code to identify the basis for the 
evaluation assigned; the additional code is shown after the 
hyphen].  The RO assigned Diagnostic Code 5299 pursuant to 38 
C.F.R. § 4.27, which provides that unlisted disabilities 
requiring rating by analogy will be coded first with the numbers 
of the most closely related body part and '99'.  See 38 C.F.R. § 
4.20 (2009) [when an unlisted condition is encountered it will be 
permissible to rate it under a closely related disease or injury, 
in which not only the functions affected, but the anatomical 
localization and symptomatology are closely analogous].  The RO 
determined that the most closely analogous Diagnostic Code is 38 
C.F.R. § 4.71a, Diagnostic Code 5271 (2009) [ankle, limited 
motion of].

The assignment of a particular diagnostic code is "completely 
dependent on the facts of a particular case."  Butts v. Brown, 5 
Vet. App. 532, 538 (1993).  One diagnostic code may be more 
appropriate than another based on such factors as an individual's 
relevant medical history, diagnosis, and demonstrated 
symptomatology. Any change in diagnostic code by a VA adjudicator 
must be specifically explained. See Pernorio v. Derwinski, 2 Vet. 
App. 625, 629 (1992).

The Board has considered the potential application of related 
Diagnostic Codes.  In that regard, the Board notes that in the 
Veteran's case, there are no findings of malunion of the os 
calcis or astragalus, or of ankylosis of the ankle joint.  
Ankylosis is "immobility and consolidation of a joint due to a 
disease, injury, surgical procedure."  See Lewis v. Derwinksi, 3 
Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary 
of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  
Accordingly, Diagnostic Codes 5270, 5272, and 5273, which require 
malunion or ankylosis, are not for application in this case; nor 
has the Veteran so contended.

In short, the Board finds that the Veteran's right ankle 
disability is appropriately rated under Diagnostic Code 5271.

Under Diagnostic Code 5271 [ankle, limited motion], marked 
limitation of motion in the ankle warrants a 20 percent 
disability rating, and moderate limitation of motion in the ankle 
warrants a 10 percent disability rating.  See 38 C.F.R. § 4.71a, 
Diagnostic Code 5271 (2009).

The Board observes that the words "moderate" and "marked" are not 
defined in the VA Rating Schedule.  Rather than applying a 
mechanical formula, the Board must evaluate all of the evidence 
to the end that its decisions are "equitable and just."  See 38 
C.F.R. § 4.6 (2009).  

For purposes of VA compensation, normal dorsiflexion of the ankle 
is zero to 20 degrees and normal ankle plantar flexion is zero to 
45 degrees.  See 38 C.F.R.         § 4.71a, Plate II (2009).

As indicated above, the Veteran is currently rated as 10 percent 
disabling under Diagnostic Code 5271.  In order to warrant a 20 
percent rating, the evidence must demonstrate marked limitation 
of motion in the ankle.  See 38 C.F.R. § 4.71a, Diagnostic Code 
5271 (2009).

The Veteran was afforded a VA examination in June 2004 as to his 
right ankle disability.  He complained of stiffness in his ankle, 
and use of orthotics and medication for treatment.  Further, 
prolonged walking increased the pain and repetitive motion also 
produced pain.  Although he reported no evidence of instability 
or flare-ups, he indicated that daily activities are somewhat 
limited.  

Upon physical examination, the VA examiner noted that the Veteran 
did not wear any braces for his right ankle or use a cane.  
Further, he walked with normal heel-toe gait, although diffuse 
soft swelling of the ankle was reported.  Alignment of the right 
ankle was normal without any tenderness.  Range of motion testing 
revealed dorsiflexion of 15 degrees, plantar flexion of 20 
degrees, inversion of 15 degrees, and eversion of 10 degrees.  
Power against resistance was noted as satisfactory.  A X-ray 
report of the right ankle revealed normal findings without any 
residual of bony injury.  The VA examiner diagnosed with Veteran 
with a history of injury to the right ankle, but the right ankle 
failed to reveal any residual of trauma and the Veteran had 
adequate range of motion.  Finally, the VA examiner reported that 
range of motion or joint function of the right ankle was not 
likely to be limited by pain, fatigue, weakness, or lack of 
endurance.  

Additionally, the Veteran was provided a VA examination for his 
right ankle in September 2009.  He complained of pain in his 
ankle, limitation of daily activities and work, and that the 
ankle would give out off and on.  He used ankle support "at 
times" and medication for treatment.  Repetitive motion did not 
produce any additional loss of motion, and there was no history 
of flare-ups.  

Upon physical examination, the VA examiner noted that the 
Veteran's posture was "good," but that he walked with a limp 
and used a right shoe insert.  Alignment of the right ankle was 
normal with no deformity or swelling, power against resistance 
was 5/5, and no tenderness was noted.  Range of motion testing 
revealed dorsiflexion of 15 degrees, plantar flexion of 25 
degrees, inversion of 15 degrees, and eversion of 10 degrees.  
The Veteran did not complain of any pain during motion.  
Moreover, there was no evidence of instability, drawer test was 
negative, and Achilles tendon and heel were neutral.  An X-ray 
report of the right ankle revealed normal findings with no 
evidence of arthritis or chipped bone.  The VA examiner diagnosed 
the Veteran with a normal right ankle without any residual of 
trauma at the present time.  The examiner added that the Veteran 
did not demonstrate any limitation of function, and there was no 
evidence of weakened movement, excess fatigability, or 
incoordination on repetitive use of the ankle, nor was there 
evidence of any pain during the ankle examination.  The examiner 
concluded that the Veteran did not demonstrate impairment of 
function during the examination.     

Taking into consideration the evidence of record, the Board finds 
that the Veteran's service-connected right ankle disability does 
not closely approach marked disability pursuant to Diagnostic 
Code 5271.  Although it revealed some limitation of motion, the 
June 2004 and September 2009 VA examination reports showed that 
the Veteran demonstrated nearly normal dorsiflexion [15 degrees] 
and plantar flexion [20 to 25 degrees] range of motion.  [The 
Board notes that normal dorsiflexion is 20 degrees and normal 
plantar flexion is 45 degrees.  See 38 C.F.R. § 4.71a, Plate II 
(2009).]  Further, there was no decrease in range of motion upon 
repetition, minimal to no signs of pain upon manipulation of the 
ankle, good strength, and no tenderness or abnormal alignment.  
These findings are consistent with no more than moderate degree 
of limitation of motion and are not consistent with "marked" 
limitation of motion of the ankle as contemplated by a higher 
rating.  Therefore, the Veteran's service-connected right ankle 
disability does not warrant an increased disability rating under 
Diagnostic Code 5271.  

In reaching this conclusion, the Board has considered the 
provisions of 38 C.F.R. § 4.40 and 4.45 (2009).  See DeLuca, 
supra.  In this regard, the Board notes the VA examiner's report 
that the Veteran's right ankle periodically gives out on him and 
he suffers from stiffness in his right ankle, as well as the 
Veteran's report that he has used ankle support and that his 
daily activities are limited.  See the June 2004 and November 
2009 VA examination reports.  The Board further observes that the 
Veteran has not complained of flare-ups with respect to his right 
ankle during the period under consideration.    

However, functional loss due to pain or weakness must be 
supported by adequate pathology and evidenced by the visible 
behavior of the claimant. 38 C.F.R. § 4.40. In this case, the 
September 2009 examination report in particular indicates no 
decreased range of motion due to pain, fatigue, weakness, or lack 
of endurance after repetitive range of motion examinations.  No 
competent medical opinion contradictory to that of the VA 
examiner is of record.  The Board is unable to identify any 
clinical findings that would warrant an increased evaluation 
under 38 C.F.R. § 4.40 and 4.45.  The current 10 percent rating 
adequately compensates the Veteran for any functional impairment 
attributable to his right ankle disability.  See 38 C.F.R. 
§§ 4.41, 4.10 (2009).  

In Hart, supra, the Court held that staged ratings are 
appropriate for an increased rating claim when the factual 
findings show distinct time periods where the service-connected 
disability exhibited symptoms that would warrant different 
ratings.  
In reaching its conclusion, the Court observed that when a claim 
for an increased rating is granted, the effective date assigned 
may be up to one year prior to the date that the application for 
increase was received if it is factually ascertainable that an 
increase in disability had occurred within that timeframe.  See 
38 U.S.C.A. § 5110 (West 2002).

After a careful review of the record, the Board can find no 
evidence to support a finding that the Veteran's right ankle 
disability was more or less severe during the appeal period.  
Specifically, as discussed above, the June 2004 and September 
2009 VA examination reports indicate that the Veteran's right 
ankle limitation of motion has remained relatively consistent 
throughout the period.  As such, there is no basis for awarding 
the Veteran a disability rating other than the currently assigned 
10 percent for any time from February 2003 to the present. 

The Board has considered the question of whether an 
extraschedular rating may be appropriate for the Veteran's right 
ankle disability.  See Bagwell v. Brown, 9 Vet. App. 157 (1966).  
Ordinarily, the VA Rating Schedule will apply unless there are 
exceptional or unusual factors which would render application of 
the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 
57, 60 (1993).  According to the regulation, an extraschedular 
disability rating is warranted upon a finding that the case 
presents such an exceptional or unusual disability picture with 
such related factors as marked interference with employment or 
frequent period of hospitalization that would render impractical 
the application of the regular schedular standards.  See 
38 C.F.R. § 3.21(b)(1) (2009).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-
step inquiry for determining whether a veteran is entitled to an 
extraschedular rating.  First, the Board must first determine 
whether the evidence presents such an exceptional disability 
picture that the available schedular evaluations for that 
service-connected disability are inadequate.  Second, if the 
schedular evaluation does not contemplate the level of disability 
and symptomatology and is found to be inadequate, the Board must 
then determine whether the claimant's disability picture exhibits 
other related factors such as those provided by the regulation as 
"governing norms."  Third, if the rating schedule is inadequate 
to evaluate a veteran's disability picture and that picture has 
attendant thereto related factors such as marked interference 
with employment or frequent periods of hospitalization, then the 
case must be referred to the Under Secretary for Benefits or the 
Director of the Compensation and Pension Service to determine 
whether, to accord justice, the veteran's disability picture 
requires the assignment of an extraschedular rating.

The Veteran has not identified any factors which may be 
considered to be exceptional or unusual, and the Board has been 
similarly unsuccessful.  The evidence of record indicates that 
the Veteran is currently in receipt of SSA disability benefits.  
Notably, a review of the Veteran's SSA records does not reveal 
any contention by the Veteran for disability benefits based on 
his right ankle disability, but rather for his back and bilateral 
knee disabilities.  In any event, the Board notes that it has no 
reason to doubt that the Veteran's right ankle symptomatology 
adversely impacts his employability; however, this is 
specifically contemplated by the assigned schedular rating.  See 
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the 
disability rating itself is recognition that industrial 
capabilities are impaired].  

In addition, there is no evidence in the medical records of an 
exceptional or unusual clinical picture.  The record demonstrates 
that the Veteran has not required hospitalization as a result of 
his right ankle disability during the period on appeal.  Further, 
the record does not demonstrate any other reason why an 
extraschedular rating should be assigned.  Accordingly, the Board 
therefore has determined that referral of the case for 
extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) 
is not warranted.

In denying the Veteran's claim for an increased rating, the Board 
observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the 
Court of Appeals for Veterans Claims (Court) held that a claim 
for a total rating based on unemployability due to service- 
connected disability (TDIU), either expressly raised by the 
Veteran or reasonably raised by the record involves an attempt to 
obtain an appropriate rating for a disability and is part of the 
claim for an increased rating.  In this case, the Veteran has not 
asserted that he is unemployable because of his service-connected 
right ankle disability.  Further, as stated above, although the 
Veteran is currently in receipt of SSA disability benefits, he 
did not contend that he was entitled to benefits for his right 
ankle disability, but rather for his back and bilateral knee 
disabilities.  Accordingly, the issue of TDIU has not been raised 
in this case.  


ORDER

New and material evidence has not been received to reopen the 
claim of entitlement to service connection for a right knee 
disability.  The benefit sought on appeal remains denied.

Entitlement to an increased disability rating, in excess of 10 
percent disabling, for the service-connected right ankle 
disability is denied. 




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs