Citation Nr: 1128086 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-09 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased initial rating for service-connected arthritis of the right great toe, status-post excision of tumor, currently 10 percent disabling. 2. Entitlement to an increased initial rating for a service-connected left knee disability, currently evaluated as noncompensable prior to February 13, 2006. 3. Entitlement to an increased initial rating for a service-connected left knee disability, currently evaluated as 10 percent disabling after February 13, 2006. 4. Entitlement to service connection for status-post removal of the left ovary due to cysts. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. R. Grasman, Counsel INTRODUCTION The Veteran served on active duty from March 1999 to May 2002. This matter is before the Board of Veterans' Appeals on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issues on appeal were remanded by the Board in September 2009 for additional development. Also in September 2009, the Board granted the Veteran's claim for entitlement to service connection for headaches. In April 2009, the Veteran testified in a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. During the hearing, there was discussion as to whether the issue of entitlement to an increased rating for a right great toe disability had been appealed. Upon reviewing the record, the Board finds that the Veteran filed a timely notice of disagreement and substantive appeal, and that issue is properly before the Board. FINDINGS OF FACT 1. The Veteran has been notified of the evidence necessary to substantiate her claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent evidence of record shows that the right great toe disability is manifested by a painful scar and limitation of motion of a minor joint, but no limitation of function of the foot. 3. The competent evidence of record shows that prior to February 13, 2006 the left knee disability was manifested by pain with full range of motion and no instability; ankylosis; dislocated semilunar cartilage; cartilage, semilunar, removal of, symptomatic; impairment of the tibia and fibula or genu recurvatum. 4. The competent evidence of record shows that after February 13, 2006 the left knee disability was manifested pain with limitation of flexion to 10 degrees, full extension and no instability; ankylosis; dislocated semilunar cartilage; cartilage, semilunar, removal of, symptomatic; impairment of the tibia and fibula or genu recurvatum. 5. The competent evidence of record shows that dysmenorrhea, characterized by irregular menses and abdominal cramping which led to the removal of the left ovary, began in service CONCLUSIONS OF LAW 1. The criteria for an initial evaluation higher than 10 percent for service-connected arthritis of the right great toe, status-post excision of tumor, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Diagnostic Code 5010-7804 (2010). 2. The criteria for an initial compensable evaluation prior to February 13, 2006 for service-connected left knee disability have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Diagnostic Code 5257-5261 (2010). 3. The criteria for an initial evaluation higher than 10 percent after February 13, 2006 for service-connected left knee disability have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Diagnostic Code 5257-5261 (2010). 4. Status-post removal of the left ovary due to cysts was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was sent a VCAA letter in March 2005 that addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims for service connection and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. A March 2006 letter also included the notice provisions pertaining to how VA assigns disability ratings and effective dates as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the Dingess notice was sent subsequent to the initial AOJ decision, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her or his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Therefore, the Board concludes that there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records and VA medical records. The Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. A VA examination with respect to the issues on appeal was obtained in October 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA opinion obtained in this case was sufficient, as it was predicated on a full reading of the Veteran's service and post-service VA medical records. It considers all of the pertinent evidence of record, the statements of the appellant, provides an explanation for the opinion stated and a full description of the relevant disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board further finds that the RO complied with its September 2009 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board has reviewed the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). INCREASED RATING Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). An appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved and contemplates staged ratings where warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2010). 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. Id. 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 innervation, 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. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Painful, unstable, or maligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45 (2010). Evaluating the disability under several diagnostic codes, the Board considers the level of impairment of the ability to engage in ordinary activities, including employment, and assesses the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2010); See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2010). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2010). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Right Great Toe The Veteran's right great toe disability was rated as 10 percent disabling under Diagnostic Code 5010-7804. See 38 C.F.R. § 4.27 (2010) (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). Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2010). When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Id. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, one or two scars that are unstable or painful are rated 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7891, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2010). In an April 2007 VA Compensation and Pension Examination, the claims file was available and reviewed. The examiner noted an injury in service in 2001, and then underwent multiple surgeries including tumor removal and arthrodesis fusion of the right proximal interphalangeal (PIP) joint in 2005. The Veteran reported that the scar was very painful, hypertrophic and that she had pain throughout the day with any enclosed shoes which she is required to wear for her employment. She indicated that open shoes did not cause pain. Multiple times per day she would remove her shoes to relieve the pain. She did not use orthotics and there was no stand or walk limits other than noted. Physical examination of the right great toe demonstrated an L shaped scar that was 1.5 cm on each leg of the L. The scar was very markedly tender, hypertrophic, 3 mm above the plane of the skin. It was very tender, hypopigmented and white, but freely moving. There was no range of motion at the PIP joint where there was arthrodesis. Compression or distraction of the toe itself was painful at the PIP joint. Examination of the bilateral feet revealed no pain on the arches, the arches were well maintained with and without weight bearing as well as the Achilles tendon angles maintained with or without weight bearing. There was no abnormal callusing and no signs of abnormal weight bearing. The Veteran was diagnosed with right great toe osteoarthritis status post arthrodesis of the PIP joint with some residuals of hypertrophic scar with pain of the scar and some hypoesthesia distally. Other than that noted, there was no change in active or passive range of motion during repeat motion testing, no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. In an October 2009 VA Compensation and Pension Examination, the claims file was not available and not reviewed. The Veteran reported her history as it pertained to her right great toe. She had to pain in 2001 and an initial spongy tumor removal in April 2002 with continued pain and finally arthrodesis in August 2005 of the right PIP joint. She had continued pain which improved with hardware removal in October 2008. She reported that she had pain with wearing shoes as they would rub across the scar over the great toe. She bought shoes a half size bigger to accommodate. She reported that the scar was aggravated by rubbing from her shoes and the pain was relieved after approximately and hour after she removed her shoes. She reported that approximately 9 months ago, she was given custom made orthotics which has helped her anterior shin pain, but developed plantar fasciitis of the right foot two months ago. She did not report any standing or walking limitation. June 2008 x-rays of the right foot revealed interphalangeal joint of the great toe that was held together by a single screw going down the shaft. The joint itself had fused. She did not have a follow up x-ray after the screw was removed. The Veteran reported that she avoids stairs if possible because of her toe, although the examiner noted that she lives in a two story home. The Veteran also reported that she worked at a surgical clinic at the VA and was about to perform her usual duties as a counselor. She did not need or use assistive devices. Physical examination of the feet revealed she had tenderness on manipulation of the right arch, none on the left. Bilaterally, the arches were maintained with and without weight bearing as were the Achilles tendon angle. There were no signs of abnormal weight bearing per se, although there was a mild increase in lateral and medial calcaneal callus formation. Her toenail was dystrophic. She had no extension or flexion capability of the right PIP joint. Otherwise, foot motion was normal. She had some hypoesthesia along the lateral dorsal surface of the great toe which persisted to the tip and was compatible with the scar region on the same side. She had an L-shaped scar from surgery that was 1.5 cm each on leg of the L. It was reddened, slightly hypertrophic and 3mm above the plane of the skin. The scars were not adhered to underlying tissue. There was no ulceration or breakdown. There was no inflammation or edema and it was slightly keloid without induration or inflexibility. There was no limitation of motion or impairment of function that was directly caused by the scar, as the joint had been fused. Her overall strength including muscle tone and bulk was 5/5. Sensory examination and reflexes were essentially normal. The Veteran was able to heel raise and toe raise. With raising her toes off the ground, she had an increase in pain of plantar fasciitis, not of the toe itself. She was diagnosed with right great toe proximal interphalangeal fusion and hypertrophic painful scar with hypoesthesia. There was no change in active or passive range of motion during repeat motion testing, no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. Based on the foregoing, the Board finds that an increased evaluation for the scar on the right foot is not warranted. There was one scar that was painful. Under Diagnostic Code 7804, the Veteran's symptoms warranted a 10 percent evaluation. Further, the Board has considered whether other Diagnostic Codes warrant an increased or separate rating for the Veteran's scar. Diagnostic Code 7800 does not apply because the Veteran's scar is not located on the head, face, or neck. Diagnostic Codes 7801 and 7802 are relevant to evaluating scars not of the head, face, or neck, however, do not apply because the scar was not deep, did not cause limited motion and was not superficial in an areas of 144 square inches or greater. 38 C.F.R. § 4.118 (2010). The Board, however, also considered whether the surgeries that the Veteran incurred on her foot caused a disability that would warrant an increased or separate evaluation. Based on the foregoing evidence of arthritis and fusion of the PIP joint, as described in the VA examinations, the Board finds that a separate evaluation for the foot is not warranted. The x-rays show evidence of arthritis in the foot; however, there was no limitation of motion of the foot or loss of function. Under Diagnostic Code 5003, there must be limitation of motion of two or more major joints or minor joint groups. In this case, the only joint affected is the PIP joint, which is a single minor joint. See 38 C.F.R. § 4.45(f) (2010). Therefore, a compensable rating for arthritis or fusion of the PIP joint is not warranted. Further, disabilities of the foot are rated under Diagnostic Codes 5276 through 5284, and consideration is given as to whether any of these diagnostic codes apply to the Veteran's service-connected disorder of the right foot. Of these, Diagnostic Codes 5276 (flatfoot), 5277 (weak foot, bilateral), 5279 (metatarsalgia), 5280-5281 (hallux valgus), 5282 (hammer toe) and 5278 (claw foot) need not be considered, as the Veteran does not have these disabilities. Further, as the joint was fused surgically in a favorable position, the Veteran is also not entitled to a rating under Diagnostic Code 5283 for malunion of tarsal or metatarsal bones. Lastly, the evidence of record does not show a moderate disability of the foot to warrant a rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Specifically, the October 2009 VA examiner found that there was no impairment of function due to the fusion of the PIP joint or the scar. Therefore, a rating under Diagnostic Code 5284 is not warranted. Left Knee The Veteran's service-connected left knee disability was initially assigned a noncompensable evaluation in a January 2006 rating decision, effective February 18, 2005. Subsequently, the Veteran was assigned a 10 percent evaluation for the left knee, effective February 13, 2006. The Veteran's knee was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257-5261 for limitation of extension. According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of this joint, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45 (2010), pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Code 5260 and Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261, See also VAOPGCPREC 9-04 (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint). The Board has reviewed all the evidence of record. In a January 2004 MRI of the left knee, the impression was questionable lateral collateral ligament tear. In a February 2005 VA treatment note, there was no obvious swelling or deformity of the left knee. Varus and valgus stress failed to elicit any joint laxity. Lachman's and drawer testing were negative. There was a considerable amount of grinding underneath the patella with flexion and extension. In an April 2005 VA Compensation and Pension Examination, the Veteran had complaints of persistent pain in the left knee with intermittent swelling of the left knee and some redness. The pain in the left knee became very severe at least twice a week and interfered significantly with her ability to run. She was able to walk. Any MRI in January 2005 revealed normal medial and lateral menisci with no tears. There was a moderate suprapatellar effusion as well as a joint effusion. The anterior and posterior cruciate ligaments were intact as were the quadriceps and the patellar tendons and the medial collateral ligament. It was difficult for the radiologist to follow the lateral collateral ligament through its course though it appeared irregular and possibly discontinuous suggesting that there might be a tear in the lateral collateral ligament on the left side. The Veteran indicated that plans were made to do an arthroscope diagnostic and possibly therapeutic procedure on the left knee. Physical examination revealed active and passive flexion of both knees from 0 to 120 degrees. The soft tissue of the calf and hamstrings prevented further flexion of the knees. Both knees extended to 0 degrees. There was a negative anterior drawer sign bilaterally. There was slight positive McMurray's test on the left side and slight tenderness over both the medial and lateral collateral ligaments on the left side and very mild similar tenderness on the right side. There was no patellar crepitus. There was no evidence of collateral ligament laxity and no swelling or redness in either knee. Repetitive motion of the knees did not limit the range of motion or produce significant pain or disability secondary to fatigue. In an April 2005 VA orthopedic consult, the Veteran's main complaint was pain in the left knee at the anterolateral knee along the patella tendon. She reported locking of the knee but was able to duck walk and there was no evidence of McMurray's. An MRI did not show any cartilage tears. She did not complain of swelling of the knee. There was no high-grade effusion of the knee. The Veteran was able to walk without a limp. She could squat with the knee and take two steps forward, although mildly awkwardly. Physical examination revealed no size difference or asymmetry of the right and left knee. There was obesity. Palpation of the knee revealed no laxity of the joint at 0 to 20 degrees with varus or valgus force. There was negative recurvatus of the knee with extension. The range of motion was full from 0 to 140 degrees. At 20 degrees, there was a negative Lachman's for anterior and posterior shift. At 90 degrees, there was no anterior drawer sign noted. There was tightening of the knee with internal rotation. Palpation of the lateral collateral ligament was difficult secondary to the Veteran's size. There did not appear to be lateral or posterior laxity. There was no excessive rotation. There was some crepitus with range of motion of the knee at the patella joint. There was some crepitus with manipulation of the patella. The Veteran had some discomfort in the lateral region close to the patella. The impression was anterior knee pain, probable chondromalacia patella. In a February 13, 2006 VA treatment note, the Veteran reported left knee pain for approximately 6 years. Initial MRI revealed a possible lateral collateral ligament tear. Subsequently, the Veteran developed a cyst in the popliteal fossa of the left knee. Examination of the left knee revealed some fullness to the posterior knee in the popliteal fossa with tenderness to palpation. There was some crepitus with full extension of the knee. There was mild joint laxity noted in the lateral collateral ligament. There was no joint laxity of the medial collateral ligament. Lachman's and drawer tests were negative. A February 2006 x-ray of the left knee was negative with no significant bony abnormality. An ultrasound revealed a left popliteal cyst measuring 2.6 cm in diameter and extended a distance of 7.5 cm in the popliteal fossa. The fluid within the cyst was homogenous with a single septum. In a March 2006 orthopedic consult, the Veteran reported left knee pain. Physical examination revealed intact collaterals, Lachman's and anterior drawer testing was negative. There was painful extension. Patellofemoral glide produced some mild crepitus. There was a popliteal cyst noted on the posterior aspect. The impression was left knee subluxing patella with Baker's cyst. In an April 2007 VA Compensation and Pension Examination, the claims file was available and reviewed. The Veteran reported that she injured her knee in service in 2000. In a 2005 MRI there was chondromalacia patella with lateral collateral ligament tears and she was given a scope in May 2006 that revealed possible medial meniscus tearing. She has a chondroplasty, medial meniscectomy and a lateral release because of continued pain and there was development of a popliteal cyst. A second scope was performed in February 2007 with the same procedures of chrondroplasty, lateral release, notchplasty and medial meniscus revision. The Veteran reported problems with full extension of her knee as well as full flexion. She reported constant 3-4 out of 10 pain without ibuprofen and flare-ups anytime thought the day when she was standing, bending, twisting, and/or seated for long periods of time. The Veteran was able to complete her housework and yard work duties although found some difficulty secondary to her knee, but was able to self care. Physical examination of the left knee revealed moderate effusion in the left lateral region where she had an arthroscopic scar. She had a definite popliteal cyst that was quite large. It measured 5 cm in a horizontal fashion and spanned both the superior and inferior portion of the popliteal space for an area of 12 cm. This was definitely pronounced when she attempted extension of her knee. She had extension of minus 10 degrees, was not able to get to zero degrees and this was very painful. Flexion was to 125 with pain beginning at 115 degrees. Comparatively, the right side was able to get to 130 degrees and was impeded by the size of her hamstring and calves. The knee was stable to valgus and varus testing, anterior drawer testing and McMurray testing was sensitive and painful and did not demonstrate any clicking. She had slightly decreased sensation on the anterior knee, reflexes were 1+ bilaterally, strength was 5/5. The examiner noted that she was still in the postoperative healing period. There was no change in active or passive range of motion during repeat motion testing, no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. In a November 2007 surgery consult, the Veteran had complaints of anterior knee pain. The Veteran reported that the Baker's cyst cause her problems with extending her knee, particularly after it had been bent, it was extremely tight and painful in the back of the knee. She reported pain in the knee cap and that there was frequent swelling. Examination of the Veteran did not produce a noticeable limp. There was mild laxity of the left medial compartment, greater than the right. There was no anterior, posterior or rotational instability of the knee. There was no irritability with rotation of the hip or ankle. There was negative straight leg raising or sciatica. There was apprehension with valgus stress to the patella. She had internal rotation of the femur with usual knock kneed appearance with compensating external rotation of the tibia creating a large Q angle. The patella was relatively fixed and was not mobile. Subsequently, the Veteran underwent a series of injections. In an October 2009 VA Compensation and Pension Examination, the claims file was not available and not reviewed. The Veteran reported her history as it pertained to her left knee. She was injured in 2000 while on active duty. In a 2005 MRI there was chondromalacia patella with lateral collateral ligament tears and she was given a scope in May 2006 with eventual chondroplasty, medial meniscectomy and a lateral release because of continued pain and development of a popliteal cyst. A second scope was performed in February 2007 with the same procedures of chrondroplasty, lateral release, notchplasty and medial meniscus revision. The Veteran reported no change in her symptoms. It was still aggravated by attempting to bend or squat. She reported that she could not kneel and any type of twisting caused pain. She reported a constant ever present pain of 3-4 out of 10 that will reduce with ibuprofen. She had flare-ups throughout the day that can last from half an hour to an hour. If she stayed in one position too long, she indicated that it was difficult to bend and that it appeared to lock up. October 2008 x-rays of the left knee revealed mild degenerative arthritis with minimal medial compartment narrowing, questionable small joint effusion. The Veteran reported that she avoids stairs if possible because of her knee, although the examiner noted that she lives in a two story home. The Veteran also reported that she worked at a surgical clinic at the VA and was able to perform her usual duties as a counselor. Upon physical examination, the examiner noted that the Veteran's posture and gait were mildly antalgia through the left knee, especially when she first gets up to walk. This smoothed out to slightly perceptible as she continued to walk. She did not need or use assistive devices. The left knee demonstrated an extension lag of 8 degrees and she was not able to get to 0 degrees. It was painful at the end range of motion. Flexion was to 125 degrees throughout the range of motion, especially from flexion to extension. She had a Q angle of 20 degrees which was just outside the range of normal, 15 degrees being the upper limit for women. The knee was stable to valgus, varus and anterior drawer testing and there was no evidence of locking at the time of the examination. She also had lateral effusion of the joint line. She was diagnosed with left knee osteoarthritis with internal derangement. There was no change in active or passive range of motion during repeat motion testing, no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. Prior to February 13, 2006 The Board will address the relevant evidence submitted in the time periods before and after February 13, 2006. As shown in the April 2005 VA Compensation and Pension Examination, flexion was to 120 degrees in both knees and the soft tissue of the calf and hamstrings prevented further flexion. Extension was full. In the VA treatment records, there was also full range of motion. Regarding instability, the records shows that there was no laxity and a negative anterior drawer sign in the left knee. On one occasion there was a slight positive McMurray's test on the left side, but the remaining records show no evidence of McMurray's. The Lachman's testing was also consistently negative. Based on the forgoing, the Board finds that a compensable rating is not warranted prior to February 13, 2006. The range of motion in both flexion and extension did not warrant a compensable rating under Diagnostic Codes 5260 or 5261. Flexion was at most limited to 120 degrees, which was not shown to be due to the knee disability. Extension was consistently full throughout the appeal period. Further, there was no evidence of laxity or instability. There was one occasion of a slight McMurray's test, but the preponderance of the evidence did not show subluxation or lateral instability. Therefore, prior to February 13, 2006, a compensable evaluation is not warranted. After February 13, 2006 As described by the regional office, in a February 13, 2006 VA treatment note, the Veteran's left knee disability appears to have increased in severity. Particularly, by the development of a Baker's cyst and MRI evidence of a possible lateral collateral ligament tear. There was fullness and tenderness upon examination. There was also mild joint laxity noted in the lateral collateral ligament. In February 2006 the joint was stable and there was no evidence of laxity and the Lachman's and drawer tests were negative. There continued to be MRI evidence of possible medial meniscus tearing. In March 2006, the impression was left knee subluxing patella with Baker's cyst. In April 2007, extension was minus 10 degrees and the Veteran was unable to get to zero degrees. Flexion was 125 with pain beginning at 115 degrees. The knee was stable. In November 2007 there was mild laxity, but no instability of the knee. In October 2009, there was an extension lag of 8 degrees and she was not able to get to 0 degrees. It was painful at the end range of motion. Flexion was 125 degrees. The knee was stable and no evidence of locking. Based on the foregoing, the Board finds that a 10 percent evaluation for the left knee disability is appropriate after February 13, 2006. The Veteran's extension was limited to 10 degrees. This limitation warrants a 10 percent evaluation under VA regulations. Flexion was not limited to 45 degrees to warrant a compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5261, 5260. Further, although there was some evidence of a subluxing patella in 2006, the preponderance of the evidence shows that the knee was stable and at most with mild laxity. As there was not recurrent instability or subluxation, the Board finds that a compensable rating is not warranted under Diagnostic Code 5257 during this time period. Regarding the entire appeal period, the Board also considered whether the Veteran is entitled to a higher or separate rating for her left knee disability under other diagnostic codes. Included within 38 C.F.R. § 4.71 are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The evidence of record does not show that the Veteran's left knee disability exhibits any of these symptoms, therefore, these codes to not apply. Other Considerations The Board has considered whether staged ratings under Hart are appropriate for the Veteran's service-connected right toe and left knee disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. The Board has also considered the Veteran's complaints of pain in her right foot and left knee. The examinations clearly state, however, that repetitive motion did not cause any limitation of function due to pain in either disability. Therefore, the objective medical evidence does not show that pain on use resulted in additional functional limitation to the extent that under the limitation of motion codes the Veteran's disabilities would be more than the respective assigned ratings. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, while the Veteran has testified that her disabilities impact her work in that she has to remove her shoes at times and experienced pain while kneeling, she indicated that she was able to perform her duties of employment. As such, the record fails to show that such service-connected disabilities render her unemployable. Moreover, insofar as the Veteran's disabilities interfere with her employability, the Board finds that such is contemplated by his assigned evaluations under the rating schedule. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In addition, the Board observes that the Veteran does not meet the threshold schedular criteria for TDIU. Therefore, as the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record, higher ratings for the Veteran's disabilities may only be awarded on an extra-schedular basis. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra- schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant'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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right great toe and left knee disabilities with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's toe and knee symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms of her disabilities that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for her service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's toe and knee disabilities may interfere with her employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for increased ratings for her right great toe and left knee disabilities. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. SERVICE CONNECTION The Veteran contends that service connection is warranted for status-post removal of the left ovary due to cysts. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). For the showing of 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. See 38 C.F.R. § 3.303(b) (2010). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). In an October 2009 VA Compensation and Pension Examination, the claims file was not available and not reviewed. The Veteran reported her history as it pertained to the left ovary. In service, the Veteran began to experience syncope and presyncopal episodes. She reported to sick call with abdominal pain, cramping, bleeding and abnormal cycles. She was referred to her regular OB/GYN. She reported that she was found to have a left cyst during an intravaginal ultrasound and that they have attempted medication of Ortho Evra and she stayed on that medication until she was discharged from service. She received a second intravaginal ultrasound and was diagnosed with a confirmed left cyst and polycystic ovarian syndrome. In August 2002, she reported that she underwent a left oophorectomy and the symptoms subsided for three months. Later in 2002, she began to experience irregular bleeding again and was treated with medication. She ultimately had a full hysterectomy in December 2007 after which she had no further cramping or abnormal bleeding. The examiner noted that due to the hysterectomy, a pelvic examination would not be helpful and it was deferred for the Veteran. The examiner reviewed the intravaginal ultrasound reports. Later in October 2009, the same VA examiner reviewed the claims file and submitted an Addendum. The examiner noted that the physical examination of the Veteran in January 2002 was essentially normal although she reported irregular bleeding for the previous 5 months. The treating physician recommended progesterone withdrawal checking the CBC and TSH with follow-up in 5 weeks. The VA examiner noted that there were no follow-up records associated with the claims file. In September 2002, there was a concern for ovarian cancer due to a family history and abnormal PAP smears. An ultrasound in August 2002 revealed a hypoechoic mass in the left adnexa which appeared to be a large hemorrhagic cyst or chocolate cyst associated with endometrioma. Otherwise, the ovaries appeared normal and there was no evidence of polycystic cysts. The examiner considered the remaining treatment records and in September 2002 there was reference to a persistent ovarian cyst on the left side. On September 16, 2002, the Veteran's left ovary was removed. There was no pathology report or follow-up note regarding the surgery. Subsequently, the Veteran was treated for polycystic ovarian syndrome and ovarian cyst on the right ovary. She underwent a laparoscopic assisted vaginal hysterectomy right salpingo-oophorectomy. The examiner concluded that based on the evidence of record, there is no identifiably pathology of either the right or left ovaries. Therefore, a left ovary diagnosis could not be provided. The examiner concluded that the Veteran clearly developed documented irregular menses and abdominal cramping several months prior to leaving service that improved for a short period of three months after removal of the left ovary. Further, the initial reason for the removal of the left ovary was concern over whether she had a malignancy identified on ultrasound as a hypoechoic mass. The examiner explained that the most precise diagnosis was dysmenorrhea, characterized by irregular menses and abdominal cramping beginning several months prior to discharge from the service. The examiner noted that currently, the Veteran has full resolution of her symptoms after the bilateral salpingo-oopherectomy and vaginal hysterectomy. The examiner concluded that the Veteran had no specific left ovary pathology, but the dysmenorrhea clearly began in service and therefore her symptoms and treatment for dysmenorrhea (with ultimately full resolution) is at least as likely as not related to symptoms in service. Based on the foregoing, the Board finds that service connection for removal of the left ovary is warranted. There is a current diagnosis of left ovary removal. Further, the examiner concluded, that although there was not a clear pathology of the underlying condition of the left ovary that led to its removal, the symptoms that led to the removal of the ovary began in service. Further, the VA examiner provided a nexus between service and the treatment for dysmenorrhea which was the removal of the left ovary. As such, the Board finds that although a complete medical description of the left ovary disability is not available, the evidence does not preponderate against the Veteran's claim for service connection as the symptomatology began in service and the left ovary was removed shortly after service. Therefore, the Board affords the benefit of the doubt to the Veteran and finds that service connection for removal of the left ovary is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increased initial rating for service-connected arthritis of the right great toe, status-post excision of tumor, currently 10 percent disabling is denied. An increased initial rating for a service-connected left knee disability, currently evaluated as noncompensable prior to February 13, 2006 is denied. An increased initial rating for a service-connected left knee disability, currently evaluated as 10 percent disabling after February 13, 2006 is denied. Service connection for status-post removal of the left ovary is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs