Citation Nr: 1237458 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-18 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to an initial compensable rating (so a rating higher than 0 percent) for traumatic arthritis of the right ankle from April 7, 2008 to March 28, 2010, and to a rating higher than 10 percent since March 29, 2010. 3. Entitlement an initial compensable rating (so a rating higher than 0 percent) for internal derangement of the right knee from April 7, 2008 to March 28, 2010, and to a rating higher than 10 percent since March 29, 2010. ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran had active military service from June to December 1999, from May to December 2002, and from January 2003 to January 2004. This appeal to the Board of Veterans' Appeals (Board/BVA) is from September 2008, February 2009, and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed these claims at issue on April 7, 2008. The initial September 2008 RO decision denied his claims, which at the time were all for service connection for his bilateral (left and right ankle) and right knee disabilities. But the subsequent February 2009 RO decision, in relevant part, granted his claims for service connection for his right ankle and right knee disabilities, although continued to deny his claim for service connection for his left ankle disorder. The RO assigned initial 0 percent (i.e., noncompensable) ratings for the right ankle and right knee disabilities, retroactively effective from the receipt of these claims on April 7, 2008. In response, he continued to appeal, both for service connection for his left ankle disorder and for higher initial ratings for his right ankle and right knee disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal these "downstream" issues concerning whether he was entitled to higher initial ratings for these now service-connected disabilities). See also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this will compensate the Veteran for this variance). The most recent RO decision at issue, in April 2010, increased the ratings for the right ankle and right knee disabilities from 0 to 10 percent, but only retroactively effective as of March 29, 2010, the date of a VA compensation examination, so not all the way back to the receipt of these claims on April 7, 2008. The Veteran since has continued to appeal for even higher ratings for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible ratings for these disabilities, absent express indication he is not). Hence, these claims now concern whether he was entitled to initial compensable ratings for these disabilities, meaning ratings higher than 0 percent, from April 7, 2008 to March 28, 2010, and whether he has been entitled to ratings higher than 10 percent for these disabilities since March 29, 2010. As will be explained, not only did the Veteran file a Notice of Disagreement (NOD) in February 2009 concerning the ratings for his right ankle and right knee disabilities, but also a second statement a relatively short time later, in December 2009, referencing his left ankle condition. In the statement, he explained that he was overcompensating for his right ankle disability by using his left ankle, placing an inordinate amount of stress and strain on it, which in turn was causing chronic pain. Especially because he is unrepresented in this appeal, that statement will be construed liberally as an NOD with the denial of his claim for service connection for a left ankle disability. 38 C.F.R. § 20.201 (2012). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The statement of the case (SOC) since issued in April 2010 and supplemental SOC (SSOC) in June 2012, however, only addressed the claims concerning the ratings for the right ankle and right knee disabilities. Consequently, the Board must remand, rather than merely refer, this other claim concerning his left ankle disorder to also provide him an SOC regarding this other claim and to give him an opportunity, in response, to complete the steps necessary to perfect his appeal of this other claim to the Board by also filing a timely substantive appeal (VA Form 9 or an equivalent statement). Manlincon v. West, 12 Vet. App. 238 (1999) and 38 C.F.R. § 20.200 (2012). The remand of this claim to the RO will be via the Appeals Management Center (AMC) in Washington, DC. However, the Board is going ahead and deciding the claims for higher ratings for his right ankle and right knee disabilities. FINDINGS OF FACT 1. Since the receipt of this claim for benefits on April 7, 2008, the range of motion of the Veteran's right knee has been up to 120 degrees on flexion but limited by 20 degrees on extension, so for a net range of motion from 20 to 120 degrees. 2. But also since the receipt of this claim for benefits on April 7, 2008, he also has had instability of his right knee, as shown by a positive anterior and posterior drawer test to about 1/3 of an inch with pain. 3. Since the receipt of this claim for benefits on April 7, 2008, he has had traumatic arthritis of his right ankle, including consequent painful and limited motion. 4. Since March 29, 2010, however, the range of motion of his right ankle has been only from 0 to 10 degrees on dorsiflexion and only from 0 to 30 degrees on plantar flexion, with objective findings of pain and additional limitation of motion after repetition. CONCLUSIONS OF LAW 1. The criteria are met for a higher 30 percent rating, though no greater, for the limitation of extension of the right knee since April 7, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5261 (2012). 2. He also has been entitled to a separate 20 percent rating, though no higher, for moderate instability of his right knee since April 7, 2008. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. Also, for the initial period at issue from April 7, 2008, to March 28, 2010, the criteria are met for a higher 10 percent rating for the traumatic arthritis in his right ankle with consequent painful motion. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5271. 4. The criteria are met, as well, for an even higher 20 percent rating for markedly limited motion of his right ankle since March 29, 2010. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). To this end, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all elements of a service-connection claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 et seq. (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The Veteran has received all required notice. Keep in mind that all of his claims arose in the context of him trying to establish his underlying entitlement to service connection, even for these right ankle and right knee disabilities at issue. So the VCAA notice he was provided in April 2008 primarily concerned the type of evidence and information he needed to have to show his entitlement to service connection for these claimed disabilities. And the RO provided that initial notice before making this initial determination, so in the preferred sequence, that is, before initially adjudicating these claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). He received additional VCAA notice in December 2008, and service connection for these disabilities subsequently was granted in the RO's February 2009 decision. He then appealed for higher initial ratings for these now service-connected disabilities, so a "downstream" issue. VA is not required to provide him additional VCAA notice concerning this "downstream" element of his claim. See, e.g., Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In Dingess, and more recently in Goodwin v. Peake, 22 Vet. App. 128 (2008), the Court held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the initial intended purpose of the notice has been served. Instead of providing additional VCAA notice in this situation concerning a "downstream" issue, such as the rating assigned for the disability, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And this has been done; the Veteran has received both an SOC in April 2010 and an SSOC more recently in June 2012 discussing the "downstream" disability rating element of these claims, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial noncompensable (i.e., 0 percent) ratings and then higher 10 percent but no greater ratings. He therefore has received all required notice. VA also has satisfied its duty to assist him by obtaining all relevant evidence in support of his claims, including his service treatment records (STRs), service personnel records (SPRs), and records of all pertinent evaluation or treatment he has received since service, whether from VA or privately. These include records from the VA Medical Centers (VAMCs) in Albany, New York, and New York City, New York. In addition, he had two VA compensation examinations, in December 2008 and March 2010, to assess and then reassess the severity of his right ankle and right knee disabilities. II. Whether Higher Ratings are Warranted for the Right Knee Disability The Veteran claims that his right knee disability should receive higher ratings because the existing ratings do not sufficiently contemplate its severity. This right knee disability (internal derangement) initially was rated as 0-percent disabling, so noncompensable, from April 7, 2008, until March 28, 2010, but has been rated slightly higher, as 10-percent disabling, effectively since March 29, 2010. So the RO already has "staged" the rating in accordance with the holding in Fenderson, 12 Vet. App. at 125-26, to account for this increase in severity of the disability. The Board therefore need only determine whether this was an appropriate staging. Based on the medical and other evidence of record, the Board finds that he is entitled to an even higher 30 percent disability rating as of the date this claim was filed, April 7, 2008, because of the extent of the limitation in his range of motion. He also has been entitled to a separate 20 percent rating, however, for moderate instability of this knee as well since April 7, 2008. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. His entire medical history is considered when making a disability determination. 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Arthritis due to trauma (i.e., post-traumatic arthritis), substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis (hypertrophic or osteoarthritis) is rated under DC 5003 and, in turn, rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved - which, here, since involving the knee, are DC 6260 for limitation of leg and knee flexion and DC 5261 for limitation of leg and knee extension. When, however, the limitation of motion of the specific joint or joints involved is noncompensable (meaning 0-percent disabling) under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. And a 20 percent rating is warranted for this with occasional incapacitating exacerbations. Note (1) in DC 5003 indicates these 20 and 10 percent ratings will not be combined with ratings based on limitation of motion. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45(f). According to DC 5260, limitation of leg and knee flexion to 60 degrees warrants a 0 percent rating. A 10 percent rating requires flexion limited to 45 degrees. A 20 percent rating requires flexion limited to 30 degrees. And a 30 percent rating is warranted when flexion is limited to 15 degrees. According to DC 5261, limitation of leg and knee extension to 5 degrees warrants a 0 percent rating. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating requires extension limited to 15 degrees. And a 30 percent rating requires extension limited to 20 degrees. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. "Other" knee impairment, including recurrent subluxation or lateral instability, is rated as 10-percent disabling when resulting in slight knee disability, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, DC 5257. VA's Rating Schedule does not define these words "slight," "moderate" and "severe." 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. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Else, this would violate VA's anti-pyramiding regulation, 38 C.F.R. § 4.14. VA's General Counsel has held that a claimant who has arthritis and instability of the same knee may be rated separately under DCs 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, or vice versa, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). VA's General Counsel additionally has held that separate ratings may be assigned, as well, for limitation of knee extension and flexion of the same knee. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Inquiry will be directed to whether there is more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is 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. Indeed, in Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. With any form of arthritis, painful motion is an important factor of disability. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), however, the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. To reiterate, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Turning back now to the facts and circumstances of this particular case. The Veteran had a VA compensation examination in December 2008. The examiner indicated that the right knee had flexion of from 20 to 135 degrees, so extension limited by 20 degrees (keeping in mind that normal extension is to 0 degrees). The Veteran had no objective evidence of pain or additional limitation following repetitive motion. The examination was unremarkable for ankylosis, instability, or clicking, although grinding, crepitation (abnormal sounds), and patellar abnormalities were noted. The diagnosis was internal derangement of the right knee, which had "significant effects" on his usual occupation, including pain and reduced mobility. The disability had an impact on his chores, exercise, and driving, and prevented sport and recreational opportunities. The Veteran's more recent VA examination in March 2010 had similar results. He was observed to have a slow, slightly limping gait, as well as stiffness in his knee joint. As on the earlier examination, his shoe heels wore down abnormally. Also, as before, patellar structures were not normal due to the smaller size of his right kneecap (patella). His right knee flexion was 0 to 120 degrees, but his extension again was limited by 20 degrees. He was unable to climb stairs without pain, and walking was limited to shopping. He could no longer run or kneel. He had difficulty dressing and driving, especially in stop-and-go traffic. An X-ray revealed that his right patella is slightly shorter than his left at the sight of the original trauma, presumably referring to his injury to this knee in service. Based on the results of these two VA compensation examinations, it is clear he was rated too low in both the rating decision of February 2009 and even the more recent one in April 2010. In both of those decisions, he was found to have extension to 0 degrees, so entirely normal extension, which however is a misreading of the examiners' findings that he could not extend his leg/knee past 20 degrees. As a consequence it is apparent he is entitled to a higher 30 percent rating under DC 5261 because his right knee extension is limited to 20 degrees. And since he had this amount of limited extension even during that earlier December 2008 VA compensation examination, in response to his April 7, 2008 claim, he is entitled to this higher 30 percent rating back to the receipt of his claim on April 7, 2008. No medical evidence in the file predates the filing of this claim, however, so the rating can only be effective from the date of filing (April 7, 2008). None of the evidence shows limitation of motion on extension beyond 20 degrees, so a rating higher than 30 percent is unwarranted under DC 5261. Moreover, since his flexion when examined for compensation purposes in December 2008 and again in March 2010 was on both occasions to 120 degrees (out of the normal 140 degrees), his flexion far exceeded even the 60 degrees' limitation required for the most minimum 0 percent rating under DC 5260. Hence, he is not entitled to additional compensation for his flexion limitation under DC 5260 or a separate rating for this, either, under VAOGCPREC 9-2004. Turning next, though, to the possibility of also receiving a separate rating for right knee instability, the second VA examiner performed three tests: a Lachman's test, a McMurray's test, and an anterior and posterior drawer test. All three tests are orthopedic in nature and involve controlled flexion and rotation of the knee joint to feel for any pain or other deformities. The Veteran's anterior and posterior drawer test was considered positive to 1/3 of an inch with pain, which indicates his tibia pulled forward or backward more than normal, and typically signifies an abnormality with the anterior cruciate ligament or the posterior cruciate ligament. Because, then, his second VA examination was positive for this result, he will be additionally rated for "moderate" instability at the 20-percent level under DC 5257. This is in addition to the 30 percent rating for his right knee arthritis and consequent limitation of extension under DCs 5003 and 5261, as these are considered separate disabilities according to VAOGCPRECs 23-97 and 9-98. However, as the extension limitation is due to the traumatic arthritis, the Veteran is not entitled to a separate rating for arthritis under DC 5003, as this is subsumed in the 30 percent rating for his extension limitation. He will be rated as 20-percent (moderately) disabled for instability of his right knee. This is based on his subjective reports of his instability, giving-way, weakness, locking, and pain, but also his reports that he does not experience incoordination or subluxation of his joint. The examiner indicated the Veteran did not have clicks or snaps, although he had grinding. His Lachman test for anterior instability was normal, and his McMurray rotation test to assess his meniscus was also normal. However, his drawer test showed that the tibia separated painfully from the knee to about one-third of an inch. The drawer test is recorded on the following scale: normal; 1+ (0 to 5 millimeters); 2+ (5 to 10 millimeters); and 3+ (10 to 15 millimeters). Because one third of an inch converts to about 8.5 millimeters, or 0.85 centimeters, the test most closely approximates the "2+" (moderate) instability rating. However, insofar as the record contains no reports of more serious knee instability or subluxation, much less on a recurrent basis, he is not entitled to a higher disability rating under DC 5257. The effective date of his instability rating, however, is a closer call. He was found not to have instability of his right knee during his earlier December 2008 VA compensation examination. Instead, the instability was only noted during his anterior and posterior drawer tests during his more recent March 2010 VA examination, in turn suggesting the date of that more recent examination should mark the effective date for the rating based on this additional finding. According to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). So determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, though, the Veteran's April 2008 claim was not for an increase in the rating for an already established service-connected disability, rather, a claim to establish his entitlement to service connection for this disability. So he cannot under any circumstance receive this additional rating before the receipt of his underlying claim for service connection, which as mentioned was on April 7, 2008. Generally, and except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Importantly, 38 C.F.R. § 3.400(b)(2) provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. But if, as here, the Veteran did not file the claim for service connection within one year of his discharge from service, the earliest possible effective date he may receive for any later grant of service connection is when he eventually filed his claim, where, here, to reiterate, was on April 7, 2008. Moreover, his VA examination in December 2008, in response to that claim, did not produce results for a Lachman's test, McMurray's test, and an anterior and posterior drawer test, and it is not clear that this type of testing was performed or even requested at that time. The examiner simply marked the "No" box for instability. But resolving all reasonable doubt in the Veteran's favor, see 38 C.F.R. § 4.3, it stands to reason that he nonetheless had instability in his right knee even then, during that earlier VA examination, since his complaints have been virtually the same, including of this, since receipt of his claim on April 7, 2008. The evidence does not show he acquired instability in this knee only as of the day of his more recent VA examination in March 2010. As a consequence, this separate instability rating will extend back to the receipt of his claim on April 7, 2008, like the higher rating he also is receiving in this decision for the traumatic arthritis in this knee and consequent limitation of extension. III. Right Ankle Disability Ratings The Veteran also claims that his right ankle disability should receive higher ratings. He has traumatic arthritis in this ankle, so DCs 5010 and 5003 are for application, which in turn refer the rater to DC 5271 since this arthritis is causing limitation of motion in the ankle. This right ankle disability initially was rated at 0 percent (noncompensable) from April 7, 2008, until March 28, 2010, but has been rated slightly higher, as 10-percent disabling, effectively since March 29, 2010. Based on the medical and other evidence of record, however, the Board finds that the Veteran was entitled to a higher 10 percent rating during the initial period at issue from April 7, 2008, until March 28, 2010, if for no other reason than because he has arthritis in this ankle with painful motion so is entitled to this minimum compensable rating. He also is entitled to a higher 20 percent rating since March 29, 2010, however, for even greater limitation of motion than is contemplated by a 10 percent rating. For VA rating purposes, full range of motion of an ankle is from 0 to 20 degrees of dorsiflexion and from 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. A 10 percent rating is assigned where there is moderate limitation of motion of the ankle, and a 20 percent rating is assigned where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. And just as when previously rating the subluxation and instability of the right knee, these descriptive terms "moderate," and "marked" as concerning the right ankle are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Higher 30 and 40 percent ratings are available for ankylosis under DC 5270. But to assign these higher ratings, the record must establish that ankylosis is present. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 94 (31st ed. 2007) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Here, though, the Veteran does not have ankylosis, so DC 5270 does not apply. As with his right knee disability, the RO "staged" the rating for this right ankle disability - assigning an initial 0 percent rating and then, as of March 29, 2010, a higher 10 percent rating. The Board therefore need only determine whether this was an appropriate staging. The Veteran has had two ankle examinations, in December 2008 and March 2010, the results of which differ considerably. During the VA examination in December 2008, the evaluating physician indicated the Veteran had deformity, tenderness, and weakness of his right ankle. His range of motion on dorsiflexion was from 0 to 20 degrees, so entirely normal, and on plantar flexion from 0 to 40 degrees, so just short of normal (45 degrees). He also did not have pain or additional limitations after repetitive motion. The diagnosis was traumatic arthritis in the right ankle. This disability was said to have a significant effect on his usual occupation, but no effects on his usual daily activities. His more recent VA examination in March 2010 showed significantly worsened results. He had pain, stiffness, weakness, and daily episodes of locking, albeit without instability, giving-way, or incoordination. He had some tenderness around the tendons of his right ankle. His range of motion was just 0 to 10 degrees on dorsiflexion, so only 1/2 of normal dorsiflexion, and from 0 to 30 degrees on plantar flexion, so just 2/3 or normal plantar flexion. He also had pain with repetitive motion, and after three repetitions he had decreased range of motion. His ankle disability contributed to the same occupational limitations as did his right knee disability. Because there were objective indications of traumatic arthritis in this ankle even when initially examined for compensation purposes in December 2008, he is entitled to the minimum compensable rating of 10 percent (rather than just 0 percent) during the initial period at issue from April 7, 2008, to March 28, 2010. See 38 C.F.R. § 4.71a, DC 5003 (indicating this minimum compensable rating is to be assigned even when there is not a compensable degree of limitation of motion). And since the results of his VA examinations show the range of motion in this ankle was even more limited during his more recent VA compensation examination on March 29, 2010, he is entitled to an even higher 20 percent rating as of that date. This is because his range of motion has become so limited, and because repetitive motion contributes further to his pain and limitations of motion. Keep in mind that a normal ankle has dorsiflexion of from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. But as of that March 29, 2010 VA examination, he only has 0 to 10 degrees on dorsiflexion, so, again, only 1/2 of normal dorsiflexion, and only 0 to 30 degrees of plantar flexion, so only 2/3 of normal plantar flexion. In addition, this range of motion is further reduced by painful, repetitive motion. These symptoms and restrictions, combined with daily locking of the joint and generalized weakness, most closely conform to a 20 percent rating for "marked" limitation of ankle motion and not merely "moderate" under DC 5271. The earlier VA examination in December 2008, however, showed much greater range of motion in the ankle, limited only by five degrees on plantar flexion (i.e., to 40 degrees instead of the normal 45 degrees) and no limitation of dorsiflexion, whatsoever, since it was from 0 to 20 degrees, so entirely full. In addition, he did not have pain or additional limitation with repetitive motion. Hence, this most closely correlates to a rating of "mild," rather than "marked" or "moderate" limitation of motion during the immediately preceding period at issue. But, again, the fact that the Veteran had arthritis in this ankle, even then, warrants assigning the minimum compensable rating of 10 percent under DC 5003 during this initial period at issue from April 7, 2008 to March 28, 2010. The December 2008 examiner diagnosed right ankle traumatic arthritis, so objectively confirmed the Veteran had it even then based on the results of an X-ray, which the examiner added was having significant consequences on the Veteran's usual occupation due to the associated pain. In addition, that evaluating physician indicated the Veteran had tenderness and weakness in this ankle. The Veteran's lay statements are in accord; he wrote in December 2009 that he could no longer drive a car and that his right ankle was painful whenever he would walk or stand on it for any length of time. This is sufficient evidence to show he had painful motion in his right ankle as a result of the traumatic arthritis, with a slight resultant lessening of his range of motion on plantar flexion. This, then, justifies assigning a 10 percent disability rating (the minimum compensable rating) for the initial period at issue from April 7, 2008 to March 28, 2010. From March 29, 2010 onwards, however, the arthritis rating is subsumed into the higher rating for the "marked" limitation of the ankle range of motion, as the latter is a consequence of the former and they are not separate disabilities so cannot be compensated separately. And as no medical documentation predates the date on which this claim was filed, the initial 10 percent rating will be effective as of the date of filing, April 7, 2008. IV. Whether Extra-schedular Consideration is Warranted The Veteran is not entitled to extra-schedular ratings for either his right ankle or right knee disabilities. The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is 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 Veteran'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 the 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the extent of the Veteran's impairment is adequately contemplated by the schedular rating criteria, which reasonably describe the effects of his disabilities on his occupational functioning and daily activities. These include the near-inability to drive or stand for any length of time, as well as difficulty dressing or climbing stairs, mostly on account of the pain and instability in his right ankle and knee. But the schedular rating criteria make provision for these type symptoms and impairment. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Furthermore, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, suggesting the Veteran is not adequately compensated for these disabilities by the regular rating schedule. His evaluation and treatment has been primarily, if not exclusively, on an outpatient basis, not as an inpatient, certainly not frequent inpatient. Hence, the Board is not obligated to refer these claims for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). V. Regulatory Cap for the Right Leg The regulatory cap for combined right leg disability ratings above the knee is the rating of an amputation of the leg above the knee were amputation performed on the limb. 38 C.F.R. §§ 4.68, 4.71a, DC 5164. The higher ratings being assigned in this decision, however, do not exceed the rating the Veteran would receive for amputation of his leg at a level at or above the areas of his leg affected by these disabilities. See 38 C.F.R. §§ 4.25, 4.68. ORDER A higher initial rating of 30 percent (rather than 0 percent), is granted for the right knee traumatic arthritis and consequent limitation of extension as of April 7, 2008, subject to the laws and regulations governing the payment of VA compensation. But also, a separate 20 percent rating additionally is granted for the moderate instability of this knee - also retroactively effective as of April 7, 2008, and also subject to the laws and regulations governing the payment of VA compensation. Additionally, a higher 10 percent initial rating is granted for the right ankle disability (rather than just 0 percent) for the initial period at issue from April 7, 2008 to March 28, 2010, subject to the statutes and regulations governing the payment of VA compensation. And an even higher 20 percent rating (rather than 10 percent) is granted for this right ankle disability as of March 29, 2010, also subject to the statutes and regulations governing the payment of VA compensation. REMAND The Veteran also claims that his left ankle disability is related or attributable to his military service, so service connected. His STRs show treatment during his service for left ankle pain from a first-degree sprain of this ankle in November 1999. However, on examination in December 2008, the VA examiner determined the Veteran did not have a then-current left ankle disability based on normal flexion and extension tests. There also was no evidence of pain on active range of motion. So the RO denied this claim in the February 2009 rating decision because there was no showing of a chronic (meaning permanent) left ankle disability as a result or consequence of that injury in service. The Veteran submitted an NOD later in February 2009 indicating his disagreement with the decision concerning his right knee and ankle disabilities. He did not mention any other disability, so not also his left ankle disability. However, in December 2009, so still well before expiration of the one year he had for timely appealing that February 2009 decision, he submitted a second typewritten statement in which he referred to his bilateral (meaning both right and left) ankle pain, which he said was preventing him from driving. He added that he could no longer work at a job requiring prolonged standing or driving due to the pain. He wrote, "[m]y right ankle causes me pain when I walk or stand on it for any length of time. As I need to put more weight on my left ankle, to alleviate the pain of the right, this ankle too has started to bother me." He was referred for a VA examination for his right knee and both ankles after he submitted his NOD. He was found not to have a left ankle disability, however, although he did report mild pain due to overcompensating for his service-connected right ankle disability. He therefore still had not established he had any left ankle disability or that he had at any point since the filing of this claim. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); and McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying, however, that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). In any event, the fact remains that he had initiated an appeal of the decision denying this claim, so was entitled to be provided an SOC concerning this claim. The SOC he was provided in April 2010, however, only addressed his right knee and right ankle claims since he had appealed the initial ratings assigned for these other disabilities following the determination that they were service connected. The SSOC since issued in June 2012 also only addressed the ratings for these right knee and right ankle disabilities. Especially because, however, he is unrepresented in this appeal, the Board must consider the submissions concerning his left ankle claim sympathetically and accordingly treat his December 2009 statement as an NOD regarding the denial of his claim concerning his left ankle. 38 C.F.R. § 20.201. This is particularly true since an NOD need not contain any "magical" words or phrases, only instead express disagreement with a determination and intent to appeal the decision. And, indeed, the RO scheduled him for a bilateral ankle examination after receiving the NOD. However, the RO never provided him an SOC relating to his left ankle claim, and it is unclear from the record whether he chose the traditional appeals process or de novo review by a local Decision Review Officer (DRO). As a consequence, the Board must remand this claim to the RO rather than merely refer it, to provide this necessary SOC concerning this claim and to give him an opportunity, in response, to complete the steps necessary to perfect his appeal of this additional claim to the Board by also filing a timely substantive appeal (VA Form 9 or an equivalent statement). See Manlincon, 12 Vet. App. at 238 and 38 C.F.R. § 20.200. Accordingly, this remaining claim is REMANDED for the following action: Send the Veteran an SOC concerning his claim for service connection for his alleged left ankle disability. In addition, advise him that he still needs to file a timely Substantive Appeal, such as a VA Form 9 or equivalent statement, in response to this SOC to complete the steps necessary to "perfect" an appeal to the Board concerning this additional claim. He also must be advised of the time he has to perfect this appeal. If, and only if, he submits a timely Substantive Appeal in response to this SOC, thereby perfecting his appeal of this additional claim, should it be returned to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. 2011). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs