Citation Nr: 1136818 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-24 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella and patellofemoral pain syndrome of the right knee for the portion of the appeal period extending from September 13, 2004 to January 19, 2011. 2. Entitlement to an increased evaluation for chondromalacia patella and patellofemoral pain syndrome of the right knee, for the portion of the appeal period extending from January 20, 2011, forward. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from April 1990 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This case was previously before the Board in July 2010 at which time the increased rating claim for a right knee disability was remanded. A review of the file reflects that there has been substantial compliance with the actions requested in that remand and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). Subsequent to the supplemental statement of the case (SSOC) issued in June 2011, additional evidence was received for the file. Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of an SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2010). This evidence was accompanied by a waiver which was signed by the Veteran in July 2011. Accordingly, referral of this evidence to the RO is not required and a remand for consideration of this evidence is unnecessary. 38 C.F.R. §§ 19.37, 20.1304. In deciding the claim on appeal, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). In this case, the file contains evidence sufficient to evaluate the claim for the appeal period extending from September 13, 2004 to January 19, 2011. However, additional evidentiary development is required prior to adjudication of the claim for an increased evaluation for the right knee disability, for the portion of the appeal period extending from January 20, 2011, forward, as it appears that the Veteran underwent right knee surgery in February 2011, with surgical consultation occurring on the aforementioned date. As such, the claim has been bifurcated as shown on the title page. In accordance with the opinion of the Court of Appeals for Veterans Claims (Court), TDIU has been included as an issue on appeal, as it is part and parcel of the claim for an increased disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As this matter is inextricably intertwined with the underlying increased rating claim for a right knee disability, it will be addressed in the remand below. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The issue of entitlement to an increased evaluation for chondromalacia patella and patellofemoral pain syndrome of the right knee, for the portion of the appeal period extending from January 20, 2011, forward; to include consideration of entitlement to a TDIU, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the portion of the appeal period extending from September 13, 2004 to August 27, 2010, the evidence of record shows that the Veteran's right knee disability was manifested by non-compensable limitation of flexion and extension, with additional limitation of motion (non-compensable in degree) and functional impairment on flare-ups and repetitive use, due to pain, weakness, and fatigability. 2. For the portion of the appeal period extending from August 28, 2010 to January 19, 2011, the evidence of record shows that the Veteran's right knee disability was manifested by non-compensable limitation of extension, and limitation of flexion to 45 degrees (compensable at 10 percent), with additional limitation of motion (not in excess of 10 percent disabling), and functional impairment on flare-ups and repetitive use, due to pain, weakness, and fatigability. 3. The evidence of record reflects that the Veteran's right knee disability has been manifested by slight recurrent instability throughout the appeal period extending from September 13, 2004 to January 19, 2011. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for chondromalacia patella and patellofemoral pain syndrome of the right knee, have not been met for the portion of the appeal period extending from September 13, 2004 to August 27, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45.4.71a, Diagnostic Codes 5003, 5014, 5260, 5261 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). 2. The criteria for a 20 percent evaluation for chondromalacia patella and patellofemoral pain syndrome of the right knee with compensable limitation of flexion, have been met for the portion of the appeal period extending from August 28, 2010 to January 19, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45.4.71a, Diagnostic Codes 5003, 5014, 5260, 5261 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). 3. The criteria for a separate 10 percent evaluation for slight recurrent right knee instability have been met for the portion of the appeal period, extending from September 13, 2004 to January 19, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5257 (2011); VAOPGCPREC 23-97. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) With respect to the increased rating claim for a right knee disorder, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). In October 2004 and February 2005, the Veteran was provided with such notice. Thereafter, the claim was readjudicated in a Statement of the Case (SOC) issued in April 2006 and in Supplemental SOC s issued in June 2006, April 2008, and June 2011. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Thus it is clear the Veteran had actual knowledge of, and has acted on, the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's STRs. Also on file are pertinent VA and private treatment records relating to the Veteran's right knee disability. The file also contains statements and contentions made by the Veteran and his representative. VA examinations of the knee have been conducted during the course of the appeal period in 2007, and 2010. In a brief presented in 2011, the Veteran's representative maintained that the 2010 VA examination report was inadequate, as it failed to identify the degrees at which the Veteran exhibited pain on motion. The Board finds such assertions unfounded, as the 2010 VA examination report was quite comprehensive and adequately addressed the numerous factors discussed under 38 C.F.R. §§ 4.40, 4.45, and in the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), including pain on use and indications of additional functional impairment to repetitive testing and pain on use. Moreover, the 2010 examination assists in providing a basis for the increased and evaluation which has been granted herein. Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. Moreover, there has been substantial compliance with the 2010 Board remand instructions and therefore no further remand is required. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Factual Background By rating action of July 1993, service connection was established for a right knee disability, for which a non compensable evaluation was assigned effective from May 1992. In a May 1997 determination, a 10 percent evaluation was granted for chondromalacia patella and patellofemoral pain syndrome of the right knee, effective from May 1992. In September 2004, the Veteran filed an increased rating claim for his right knee disorder. The Veteran was seen by VA in August 2004 with complaints of right knee pain, worsening recently. He also mentioned that he felt like his knee was going to give out. Examination revealed full range of motion of the lower extremities. Right knee pain with some instability was assessed. The Veteran reported that his pain level was 6/10, fluctuating with weather changes and relieved with pain medication. Testing revealed that the Veteran was not at risk for falls. An entry dated in late August 2004, indicates that the Veteran had received a Cortisone shot for his knee and that he was still taking Robaxin. X-ray films of October 2004 revealed no evidence of acute fracture, dislocation or joint effusion, and showed mild soft tissue swelling. In a statement from the Veteran received in January 2005, he explained that he only had limited time off from work to attend medical appointments and noted that his employer had already made adjustments to his work schedule to accommodate knee problems, until they could be resolved through surgery of physical therapy. He reported that he was taking muscle relaxers and pain pills until he could see an orthopedist. The Veteran also pointed out that he was seen by VA ER in late December 2004, at which time he received an injection of Cortisone and Torodol, to relieve pain and inflammation of the right knee joint. The file contains a VA record of December 2004 documenting the Veteran's complaints of increased right knee discomfort and popping at the knee cap, as well as his reported history of falls; also reflecting that he received the shots as reported. A VA record of February 2005 documents the Veteran's complaints of right anterior knee pain and increasing difficulty at work. Examination revealed range of motion from 0 to 140 degrees with stable ligaments. Mild patellofemoral crepitus was shown, and a positive patellofemoral compression test was noted. The entry indicated that the patella slid one quadrant or less in the medial direction and almost two quadrants laterally. It was noted that X-ray films revealed no evidence of osteoarthritis. Laterally riding patella was diagnosed. An MRI study of April 2005 revealed that the ligaments were intact and that there were no soft tissue abnormalities. Small volume suprapatellar joint effusion was noted. An impression of remote partial posterior cruciate ligament (PCL) tear, with no evidence of chondromalacia patella, was made. An April 2005 record accompanying that testing reveals that the Veteran complained of an 18-year history of knee pain, with steroid injection occurring during the past 11/2 years, which provided symptoms relief for 3 to 8 weeks, described as reducing edema and increasing mobility, although not decreasing pain. It was noted that the Veteran worked 12 hour shifts at an oil and gas refinery, which required him to ascend/descend 4 to 5 flights of stairs per day. Objective examination revealed antalgic gait on the right side, and overcompensation on the left side. The Veteran was advised to wear his knee brace more often. Assessments of right chondromalacia patellae and patella mal-tracking problems were made. Another entry dated in April 2005 indicated that the patellar tendon was not in line with the long axis of the lower extremity and that patellar grind test was positive. At that time, the Veteran was given another injection. The Veteran failed to appear for a VA examination scheduled for September 2005. In a statement provided by the Veteran's spouse in April 2006, she noted that the pain and discomfort caused by the Veteran's knee pain limited his ability to perform daily activities and functions including: mowing the lawn; walking long distances; and enjoying activities with the family. A VA examination of the joints was conducted in September 2007. The Veteran estimated that his right knee pain was 3/10 with activity and 8/10 with flare-ups. He indicated that some degree of pain was always present. There was no evidence of right knee locking, stiffness, redness or heat. Right knee weakness, and swelling occurring one to two times a week were reported. It was also noted that the right knee fatigued easily, lacked endurance, and gave way on flare-ups occurring about twice a year. The report stated that the Veteran was on Tramadol for pain and Robaxin, as a muscle relaxant. It was further reported that the knee was treated with Cortisone shots. It was noted that walking and standing were limited on flare-ups and that his productivity was impacted, as was his focus on the job, due to pain. The Veteran stated that he had used a brace, cane, or crutch, only with a major flare up. There were no reported episodes of dislocation or subluxation, and no symptoms of inflammatory arthritis. Physical examination revealed range of motion from 0 to 120 degrees, with complaints of pain from 104 to 123 degrees. After 6 repetitions, flexion was limited to 105 degrees with pain intensity of 4/10. Gait favored the left side with squatting and heel walking causing right knee pain. There was no evidence of effusion or ankylosis. Right knee ligaments were normal and intact and there was no evidence of tenderness or crepitus on palpation. It was reported that the Veteran was able to maintain his job as a computer logger, but with constant pain in the knee, limiting his physical abilities. It was reported that the Veteran was able to drive for 11/2 to 2 hours before experiencing cramping, and could walk for 20 to 30 minutes. It was further noted that he was unable to participate in more physical activities such as mowing the lawn, cycling, or playing football with his son. X-ray films revealed no evidence of acute fracture, dislocation, joint effusion, or appreciable degenerative arthritis. Chondromalacia/patellofemoral syndrome of the right knee with chronic pain on flare ups, and limitation of motion, was diagnosed. The examiner indicated that pain - to include on repetitive motion and with flare-ups, fatigue, weakness, and lack of endurance, were present and limited joint function. However, the examiner was unable to assess the degree of additional limitation of function due to these factors without resort to speculation. A private MRI report of April 2009 reflects that an impression of Grade I/II chondromalacia patella was made. Ligaments, tendons and menisci were normal and no significant knee joint effusion was demonstrated. VA records reveal that the Veteran was seen in October 2009, at which time he complained of severe knee pain and limped when ambulating. When seen in March 2010, he reported that he was unable to walk without severe pain. Limited range of motion and slight swelling were noted. The file contains a March 2010 medical statement from a doctor associated with a VA CBOC. It was noted that in November 2009, an orthopedist had recommended surgery. The doctor stated that the Veteran continued to work in his debilitated state and observed that the risk of injury was heightened due to unsteady gait and balance issues caused by instability of the knee. It was noted that his job required the ability to mobilize and negotiate stairs, which was described as a dangerous endeavor in the Veteran's condition. The doctor opined that the Veteran' s injury affected him in a negative manner both occupationally and socially, resulting in reduced reliability and productivity at his job which could result in his inability to support himself and his family. In a second statement from the same doctor, also dated in March 2010, it was documented that the Veteran's knee condition prohibited weight bearing for several days. VA records dated in April 2010 indicate that the Veteran was issued orthotics. At that time, the Veteran complained of right knee pain, instability, and weakness, with no reports of falling during the previous 3 months. It was also noted that the Veteran had determined that his right anterior knee pain had progressed to the point that he wished to undergo surgery. The Veteran received a Cortisone injection and MRI studies were undertaken. The April 2010 MRI study revealed that the ligaments, menisci, and cartilage were intact, with no significant joint effusion seen. The study did reveal that the lateral patella facet was flattened and that there was evidence of patellofemoral impingement. An impression of no evidence of any internal derangement was made. The file contains records of a private ER visit in April 2010, at which time the Veteran complained of right knee pain and slight edema. He reported that he was wearing a knee brace and had recently been on a trial of Hydrocodone, which was effective, but making him sleepy. Examination revealed limitation of motion, guarding and antalgic gait, without evidence of tenderness or edema. A clinical impression of chronic knee pain/tendonitis was made. Private films taken of the right knee in April 2010 revealed a normal right knee. A VA orthopedic note of June 2010, reflects that the Veteran continued to have right knee pain and was now carrying a cane in the left hand because his left knee gave out, almost causing a fall on the right knee. Examination revealed tenderness about the lateral patellar atricular facets. The file also contains a modified work release report completed by a doctor, effective from June 2010. The report indicated that the Veteran's complaints included pain and weakness and that patellofemoral syndrome of the right knee had been diagnosed. There were no restrictions on standing and sitting. Prolonged walking was limited to 6 hours a day; climbing stairs was limited to 4 hours a day; and knee bending, squatting and kneeling were not permitted. The Veteran was advised to use a knee brace as necessary. A VA examination was conducted on August 28, 2010 and the claims file and medical records were reviewed. The Veteran reported that a right knee injury in service had become progressively worse over the years and was currently manifested by constant pain. He reported that he wore a knee brace, participated in physical therapy, took pain medication, and received occasional steroid/Cortisone injections. The Veteran acknowledged having symptoms of pain, stiffness, weakness, instability, swelling, tenderness, and decreased speed of joint motion. He denied having symptoms of deformity, incoordination, effusion, or episodes of locking, dislocations, or subluxation. The report reflected that severe flare-ups occurred on a weekly basis, lasting one to two days, productive of restricted motion. It was noted that there were no constitutional symptoms of incapacitating episodes of arthritis. The report revealed that the Veteran was able to walk 1/4 mile and could stand for 15 to 30 minutes. It was noted that he always used a cane and brace. Physical examination revealed evidence of abnormal weight bearing and antalgic gait. Right knee symptoms of effusion, grinding, crepitation, tenderness, pain at rest, guarded movement, and clicking/snapping, were documented. The report also reflected that evidence of patellar abnormality was shown, described as abnormal tracking and subpatellar tenderness. The examiner indicated that there was no evidence of instability or meniscus abnormality. Range of motion testing of the right knee revealed flexion to 45 degrees and extension limited by 5 degrees, with pain on active motion. On repetitive testing range of motion was limited to 0 to 40 degrees. There was no reported evidence of ankylosis. X-ray films revealed patellofemoral joint impingement, without evidence of internal derangement. Right knee chondromalacia and patellafemoral pain syndrome, with associated osteomalacia was diagnosed. The examiner indicated that this condition had a significant effect on the Veteran's usual occupation by virtue of: decreased mobility; weakness; fatigue; decreased strength; and pain. The report reflected that the Veteran was employed full-time as a loggin supervisor, and had lost one week from work during the past year associated with the knee condition - due to factors such as receiving injections and limitations on activity. Other restrictions as prescribed by the Veteran's orthopedist (June 2010) were noted. The examiner indicated that the knee disorder also had a severe effect on participation in sports. Otherwise functional impairment of the knee was described as none (feeding, bathing, dressing, grooming); mild (chores, shopping, recreation, traveling, driving) and moderate (exercising). The Veteran was seen for a VA orthopedic surgery consult on January 20, 2011, at which time it was noted that the Veteran had a long history anterior knee pain and worked on an oil rig with restrictions. Physical examination revealed active range of motion from 0 to 130 degrees and no varus or valgus laxity. Lateral patellar compression syndrome of the right knee was diagnosed. Increased Rating - Analysis The Veteran and his representative maintain that an evaluation in excess of 10 percent is warranted for a service connected right knee disorder, and have specifically requested that a separate evaluation be assigned for instability. Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2011). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). More recently, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right knee disorder is currently evaluated under diagnostic codes 5099-5014, indicating an analogous rating to impairment resulting from osteomalacia. See 38 C.F.R. § 4.71a (2011). Specifically, under Diagnostic Code 5014, osteomalacia will be rated based on limitation of motion of the affected part, as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003, 5010. For traumatic arthritis, DC 5010 directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis 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. 38 C.F.R. § 4.71a, DC 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, X- ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1. Under code 5260, a noncompensable evaluation is warranted when flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. Under code 5261, a noncompensable evaluation is warranted when extension is limited to 5 degrees; a 10 percent evaluation is for assignment when extension is limited to 10 degrees, a 20 percent evaluation is for assignment when extension is limited to 15 degrees. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71a, Plate II (2011). The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). The Board must also consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's right knee disability, characterized as chondromalacia patella and patellofemoral pain syndrome, has been evaluated as 10 percent disabling under Diagnostic Code 5014 for the entirety of the appeal period. Range of motion findings made during the appeal period extending from September 13, 2004 to August 27, 2010, have never technically met the criteria for a 10 percent rating under codes 5260 or 5261, as the Veteran's right knee extension has never been limited to 10 degrees and there is no clinical evidence on file showing that his right knee flexion has ever been limited to 45 degrees or less. In fact, range of motion findings made prior to August 28, 2010, including those made in February 2005 and September 2007, fail to reveal even compensable limitation of motion. Essentially, it appears that the 10 percent evaluation for chondromalacia patella and patellofemoral pain syndrome assigned during this time period is based on consideration of 38 C.F.R. §§ 4.40, 4.45 and the factors discussed in the case of DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Upon comprehensive consideration to the Veteran's complaints of pain and functional impairment, the Board finds a basis for the continued assignment of a 10 percent disability rating for the portion of the appeal period extending from September 13, 2004 to August 27, 2010, under 38 C.F.R. §§ 4.40, 4.45 and with consideration of the DeLuca factors, but no basis for assigning an evaluation in excess of 10 percent. In this regard, it is clear that painful motion has been consistently shown, and has been specifically documented on range of motion testing and in medical records dated throughout the appeal period. Significantly, upon repetitive testing conducted during a VA examination of 2007, decreased range of motion was shown; however, the extent of the limitation of motion shown was still non-compensable in degree. The 2007 VA examination report reflects that the examiner indicated that pain - to include on repetitive motion and with flare-ups, fatigue, weakness, and lack of endurance, were present and limited joint function. Thus, although the Veteran did experience both right knee pain and functional impairment during the portion of the appeal period prior to August 28, 2010, the severity of such did not rise to the level warranting a 20 percent evaluation; and to the extent shown, pain and functional impairment was taken into account and forms the basis for the 10 percent evaluation assigned during this time period. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). In contrast, the Board points out that upon VA examination of August 28, 2010, limitation of right knee flexion to 45 degrees was shown, comporting with the assignment of a 10 percent evaluation under diagnostic code 5260 based on that finding alone. As such an increased evaluation of 20 percent for the right knee disorder is warranted from August 28, 2010. However, it is clear that a separate compensable evaluation for limitation of extension is not warranted, as limitation of extension to 10 degrees was not shown upon VA examination of August 28, 2010. See VAOPGCPREC 9-2004 (September 17, 2004). Again, upon consideration to the Veteran's complaints of pain and functional impairment, the Board does not find a basis for an evaluation in excess of 20 percent under 38 C.F.R. §§ 4.40, 4.45 and with consideration of the DeLuca factors, for the portion of the appeal period extending from August 28, 2010, forward. The August 2010 VA examination report reflected that severe flare-ups occurred on a weekly basis, lasting one to two days, and were productive of restricted motion. However, the level of restricted motion/additional functional impairment on flare-ups was not shown to comport with a compensable evaluation for limitation of extension or an evaluation in excess of 10 percent for limitation of flexion. In addition, evidence pertinent to the appeal period does in fact reflect that the Veteran's right knee disability has been productive of instability. The Board points out that under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when mild and 20 percent when moderate. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In addition VAOPGCPREC 23-97 provides that a Veteran may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 9-98, General Counsel held that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. While it does not appear that right knee arthritis has been definitively found on X-ray films, both chondromalcia and osteomalacia have been identified, both of which are indicators of, and closely analogous to, arthritis. As mentioned before under diagnostic code 5014, osteomalacia is rated based on limitation of motion of the affected part, as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2011). Hence the Board is persuaded that holdings made in VAOPGCPREC 23-97 and VAOPGCPREC 9-98, are applicable in this case. As early as August 2004, the Veteran mentioned that he felt like his knee was going to give out and right knee pain with some instability was assessed. When evaluated in 2005, antalgic gait on the right side, and overcompensation on the left side were shown and the Veteran was advised to wear his knee brace more often. A patellar mal-tracking problem was identified at that time, which would suggest related stability issues. In addition, the file contains a March 2010 medical statement indicating that the Veteran continued to work in his debilitated state and observing that the risk of injury was heightened due to unsteady gait and balance issues caused by instability of the knee. However, MRI studies (4/05; 4/09; 4/10) have consistently revealed that right knee ligaments were normal/intact. In addition, VA examinations of 2007 and 2010 failed to reveal any clinical indication of subluxation, dislocation or ligamentous instability of the right knee. Therefore, while the Board finds that a separate evaluation is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the Board also concludes that the degree of such instability is best described as slight. See also VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). Accordingly, the Board finds that for the portion of the appeal period extending from September 13, 2004 to January 19, 2011, a separate 10 percent disability rating for slight right knee recurrent instability is granted. In turning to the remaining Diagnostic Codes, the Board notes that a 30 percent disability rating under Diagnostic Code 5256 would not apply in this case because the pertinent medical evidence of record has not shown that there is ankylosis of the right knee. The Board notes that Diagnostic Code 5259 (removal of cartilage, semilunar, symptomatic) does not provide for a disability rating in excess of 10 percent. Therefore, it is not applicable to this analysis. With regard to Diagnostic Code 5258 (rating criteria for dislocation of semilunar cartilage with frequent episodes of locking, pain and effusion into the joint), significantly, the Veteran denied having episodes of dislocation or locking on VA examinations of 2007 and 2010. Therefore, the Board is unable to find that a separate or higher rating is warranted under this code. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right knee disability, recognizing that lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). To this extent, lay statements of symptoms, history, treatment and impairment associated with the right knee disability have been considered together with the probative medical evidence clinically evaluating the nature and severity of the pertinent disability symptoms, and both have assisted in reaching the conclusions made in this decision. In sum, for the portion of the appeal period extending from September 13, 2004 to August 27, 2010, an evaluation in excess of 10 percent for chondromalacia patella and patellofemoral pain syndrome of the right knee, is denied; for the portion of the appeal period extending from August 28, 2010 to January 19, 2011, a 20 percent disability rating for chondromalacia patella and patellofemoral pain syndrome of the right knee with compensable limitation of flexion is granted; and for the portion of the appeal period extending from September 13, 2004 to January 19, 2011, a separate 10 percent disability rating for slight right knee recurrent instability is granted. Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Evaluation and TDIU The United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As additional development is required in conjunction with the claim for an increased rating for a right knee disorder as rated from January 20, 2011, consideration of whether an extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1), will be deferred pending the development requested in the Remand below. See Thun v. Peake, 22 Vet. App. 111 (2008). In addition, the Court of Appeals for Veterans Claims (CAVC) has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). This matter too will be addressed in the Remand and adjudicated by the RO following the additional evidentiary development requested. ORDER For the portion of the appeal period extending from September 13, 2004 to August 27, 2010, an evaluation in excess of 10 percent for chondromalacia patella and patellofemoral pain syndrome of the right knee is denied. For the portion of the appeal period extending from August 28, 2010 to January 19, 2011, a 20 percent disability rating for chondromalacia patella and patellofemoral pain syndrome of the right knee with compensable limitation of flexion is granted, subject to the laws and regulations governing monetary awards. For the portion of the appeal period extending from September 13, 2004 to January 19, 2011, a separate 10 percent disability rating for slight right knee recurrent instability is granted, subject to the laws and regulations governing monetary awards. REMAND A remand is warranted in this case with respect to the claim for an increased evaluation for a right knee disability for the portion of the appeal period extending from January 20, 2011. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A; 38 C.F.R. § 3.159(c). A brief review of the evidence reflects that the Veteran was seen for a VA orthopedic surgery consult in January 2011, at which time lateral patellar compression syndrome of the right knee was diagnosed. In February 2011, the Veteran underwent right knee arthroscopic lateral release surgery. The report indicated that pertinent findings included evidence of mild degenerative changes throughout the knee joint. A work release report reflects that the Veteran was off work for about a month between late February and March 2011. A VA record of April 2011 revealed that the Veteran was cleared to return to work on light duty, but could not yet return to work on a rig. A May 2011 entry reflects that the Veteran reported having significant improvement in symptoms, with some continued stiffness and soreness. A work release report of May 2011, indicated that the Veteran had no specific restrictions relating to lifting, standing, sitting, climbing stairs, bending or squatting, and could participate in full activity as tolerated, with the use of a knee brace as needed. Given the Veteran's recent right knee surgery, the Board believes that an updated VA examination to assess his post-surgical condition, is warranted in this case. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate, particularly whereas here, there may be a change in the nature and severity of the symptomatology associated with a service-connected disorder. Therefore, a new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the Veteran's right knee disorder. The Board also notes that VA treatment records dated through mid-June 2011 have been associated with the claims file. These records reflect that the Veteran has been receiving regular and ongoing treatment for his right knee disability. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. For this reason VA treatment records dated from June 2011, forward, will be requested. As indicated in the introduction, the Board has included TDIU as an issue on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In essence, the issue of whether the Veteran is entitled to TDIU is inextricably intertwined with his increased rating claim. In this case, the Veteran's currently employment status is not clear and clarifying information should be sought as pertains to the impact of the Veteran's service-connected right knee disability on his employability. In this regard, the RO/AMC may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the TDIU claim. In addition, upon readjudication of the underlying increased rating claim, consideration of the provisions of 38 C.F.R. § 3.321(b)(1) governing the assignment of extraschedular evaluations should be undertaken. The Board also points out that in conjunction with the readjudication of the increased rating claim, consideration of additional related matters are warranted. Specifically, in light of the Veteran's February 2011 surgery, initial adjudication and consideration of the issues of entitlement to a temporary total disability rating under 38 C.F.R. §§ 4.29 and/or 4.30, should be undertaken. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for TDIU. 2. The RO/AMC shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to the increased rating claim for a right knee disability and the TDIU claim, that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, as well as to obtain VA records dated from June 2011, forward. 3. The RO/AMC shall schedule the Veteran for a VA orthopedic examination in order to assess the severity of his service-connected right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. All necessary and indicated special studies or tests, to include psychological testing, shall be accomplished. The report of examination shall include a discussion of the Veteran's lay history and symptomatology as well as a summary of the pertinent lay and clinical history pertinent to the appeal period extending from January 20, 2011. The Veteran's employment history and status should also be provided and clarified to include indicating whether the Veteran is currently employed. The examination report shall address the following: a) Describe all symptoms caused by the service-connected right knee disability, as well as the severity of each symptom. In this regard, range of motion studies shall be conducted and the examiner shall also address whether the right knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected right knee disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time. This determination should also, if feasible, be described in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner shall also state whether there is any instability/subluxation of the knee and if so, the severity of such should be described as slight, moderate, or severe. The examiner shall additionally indicate whether there is any cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint. The presence or absence of any ankylosis, favorable or unfavorable, to include the degree of any such shown in flexion or extension, should be reported. b) The examiner shall also provide an opinion as to whether the Veteran's service-connected right knee disability precludes him from obtaining substantially gainful employment. The examiner should also discuss whether the right knee disability is productive of any marked interference with employment. c) The examiner must provide a comprehensive report by including a complete rationale for all opinions and conclusions reached and citing the objective medical findings leading to the conclusions. 4. The RO/AMC should then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. 5. The RO/AMC should then readjudicate the Veteran's claim for an increased evaluation for a right knee disability for the portion of the appeal period extending from January 20, 2011, to include consideration of whether the case warrants referral for extraschedular consideration. If the decision with respect to the claim remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board following the purpose of appellate disposition. In conjunction with the adjudication of the increased rating claim for a right knee disability, the RO should consider to ancillary issues of entitlement to a temporary total disability rating under 38 C.F.R. §§ 4.29 and/or 4.30, resulting from the Veteran's February 2011 right knee surgery, which have been referred to the RO for initial adjudication. 6. The RO/AMC shall consider the issue of whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16 on the basis of the Veteran's service-connected disabilities. In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs