Citation Nr: 1301829	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  07-08 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral wrist, elbow, thumb, and left shoulder disorders.

2.  Entitlement to a rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula, with one-inch shortening, prior to March 31, 2010, and in excess of 30 percent for a total left knee arthroplasty on and after May 1, 2011 to include consideration of a total rating based upon individual unemployability due to service-connected disabilities (TDIU).

3.  Entitlement to a rating in excess of 10 percent for internal derangement of the left knee prior to March 31, 2010.

4.  Entitlement to a compensable rating for residuals of a fracture of the right ring finger.




REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from September 1964 to Septemer 1968 and evidently had Reserve service until September 1970.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In October 2010, the Veteran testified during a hearing conducted via video conference with the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In an April 2010 rating decision, the RO recharacterized the Veteran's residuals of a fracture of the left tibia and fibula and internal derangement of the left knee as a left total arthroplasty and awarded a 100 percent rating under Diagnostic Code 5055, effective from March 31, 2010 to April 30, 2011, and awarded a 30 percent rating thereafter.  The Board has re-characterized the issues on the title page to more accurately reflect the current status of the Veteran's claims.

In March 2011, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development.

In an August 2012 rating decision, the RO granted service connection for right shoulder, thoracolumbar, and cervical strains, a left ankle strain, right ankle degenerative joint disease, arthritis of the right knee, and a right total knee arthroplasty, and also granted the Veteran special monthly compensation based on housebound criteria.  The RO's action represents a full grant of the benefits sought as to the Veteran's claims for cervical, lumbar, and right shoulder and knee disabilities.

With respect to the TDIU issue on appeal, during the course of the rating appeal for left tibia and fibula disability, the Veteran has also alleged unemployability due to this disorder.  See e.g., October 14, 2010 Board hearing transcript at page 8.  See 38 C.F.R. § 3.156(b) (2012); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating for a disability).  See also Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  As such, entitlement to TDIU is also on appeal in the present case. 

The matter of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC.


FINDINGS OF FACT

1.  The evidence of record preponderates against a finding that bilateral wrist, elbow, and thumb disorders, and a left shoulder disorder, had their onset in service or are otherwise related to military service; arthritis in pertinent joints was not manifested within the first post service year.  

2.  Prior to March 31, 2010, the Veteran's service-connected residuals of a fracture of the left tibia and fibula, with one-inch shortening, were manifested by no more than moderate knee and ankle disability.

3.  Since May 1, 2011, the Veteran's left knee disability has been manifested by extension limited to 0 degrees and flexion limited to 110 degrees, when considering the Veteran's pain and functional loss; and has not been manifested by chronic residuals consisting of severe painful motion or weakness in the affected extremity, ankylosis of the joint, and nonunion of the tibia and fibula, with loose motion, requiring a brace.

4.  Prior to March 31, 2010, the Veteran's left knee was productive of subjective complaints of instability without objective evidence of moderate instability or subluxation.

5.  Residuals of a fracture of the Veteran's right ring finger are not productive of limited motion, ankylosis, or any finding commensurate with amputation.


CONCLUSIONS OF LAW

1.  Bilateral wrist, elbow, and thumb disorders, and a left shoulder disorder, were not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

2.  Prior to March 31, 2010, the criteria for rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula, with one-inch shortening, were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2012).

3.  The schedular criteria for a rating in excess of 30 percent for a total left knee arthroplasty on and after May 1, 2011 are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5055, 5260, 5261, 5262 (2012).

4.  The schedular criteria for a rating in excess of 10 percent for internal derangement of the left knee prior to March 31, 2010 are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5257, 5260, 5261.

5.  The schedular criteria for a compensable rating for residuals of a fracture of the right ring finger are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.71a, Diagnostic Codes 5299-5227, 5230 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

In November 2004 and July 2008 letters, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b) (2012).  The AOJ notified the appellant of information and evidence necessary to substantiate his claims.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  The July 2008 letter provided notice as to the assignment of appropriate disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issues on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty or a service-connected disability would be helpful in establishing the service connection claims and that evidence tending to show a worsening in severity of the service-connected disabilities would be helpful in establishing increased ratings.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

VA has done everything reasonably possible to assist the appellant with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).  His service treatment and personnel records have been obtained and his VA and private medical records have been associated with the claims file, to the extent available.  Records considered by the Social Security Administration (SSA) in its 2005 award of disability benefits due to the Veteran's cognitive and mental disorders were also obtained.  A review of his Virtual VA electronic file does not reveal any additional evidence relevant to the claims on appeal.  All reasonably identified and available medical records have been secured.  

In February 2005, April 2007, and March 2011, the Veteran was afforded VA examinations in conjunction with his claims.  The February 2005, April 2007, and March 2011 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination.  The records satisfy 38 C.F.R. § 3.326 (2012). 

As noted above, in March 2011, the Board remanded the Veteran's case to the RO for further development, which included requesting records regarding the Veteran's in-service treatment at the USAGH Frankfurt, Germany (97th General Hospital) from March 28 to April 5, 1965 and from April 20 to 30, 1965, obtaining any recent VA treatment records from the VA medical center (VAMC) in Cincinnati, Ohio, for the period from October 2009 to the present, and from the VAMC in Gainesville for the period from March 2010 to the present, requesting a copy of the administration decision and all records considered by the SSA in its 2005 award of SSA disability benefits to the Veteran, and scheduling him for a VA examination. 

There has been substantial compliance with this remand, as the Veteran was scheduled for a VA examination in March 2011.  His recent VA treatment records, dated through April 2011, were also obtained as well as records from the VAMC in Cincinnati, dated from February 2001 to June 2010.  The SSA provided records, but not its administrative decision, demonstrating that, in 2005, the Veteran was found totally disabled due to organic mental disorders (chronic brain syndrome) and affective disorders, and considered unable to work since September 2004.  In a June 2011 response to the RO's inquiry, the National Personnel Records Center indicated that there were no records located regarding the Veteran's hospitalization at the 97th General Hospital USAGH Frankfurt, Germany from March to April 1965.

The Board is satisfied that the duties to notify and assist have been met.

II. Legal Analysis

The Board has reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

A. Service Connection

The Veteran seeks service connection for bilateral wrist, elbow, and thumb and left shoulder disorders, that he maintains were injured in a March 1965 motor vehicle accident in service during which he fractured his left tibia and fibula.  In oral testimony and written statements in support of his claims, the Veteran states that he was hit from the rear by a car and thrown over the top of it.  He indicates that his back, neck, and shoulder were damaged and that he experienced chronic and continuous pain in his shoulders, wrists, and elbows since that time.  Considering the Veteran's claims in light of the relevant laws and regulations, and the objective evidence of record, the Board is of the opinion that service connection is not warranted and his claims will be denied. 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992). 

Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

"To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.

Certain chronic diseases, such as arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  This is also a direct service connection theory of entitlement.

In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 38 C.F.R. § 3.310(b).  With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiner v. Brown, 7 Vet. App. 513, 516-17 (1995). 

A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, even back pain, the Veteran is not competent to provide evidence as to more complex medical questions, such as the origin of orthopedic pathology, as is the case here.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

Service treatment records show that, in March 1965, the Veteran was struck from the rear by an automobile while he was walking and fractured his left tibia and fibula and weakened his left ankle.  He reported neck and shoulder pain and sustained a laceration to his right shoulder in the scapular region with no artery or nerve involvement.  Results of x-rays of his right shoulder taken at the time were within normal limits.  The records are not referable to arthritis of the hands, elbow, or fingers.  When examined for separation in September 1968, the Veteran's upper extremities were normal.

Post service, VA and non-VA medical records, dated from 1970 to 2011, include December 1968, January 1974 and December 1977 VA examination reports that are not referable to complaints or findings of elbow, wrist, finger, or shoulder pain or disability.

A December 2000 VA examination report shows that the Veteran had full range of motion of his elbows, wrists, and fingers, bilaterally, with no particular pain in any of these areas when he moved his joints.

The records further indicate that, in April 2001, the Veteran was seen in the VA outpatient clinic and complained of pain at the base of his thumbs since 1999.  There were mildly enlarged and tender proximal metacarpals, left more than right, with reduced range of motion on the left and near normal on the right.  Nothing was red or hot.  Results of x-rays of the Veteran's hands taken at the time showed a convexity of the 5th metacarpal bone due to an old healed fracture on the right.

VA records, dated in July 2004, include the Veteran's complaints of aches and pains in his knees, hands and wrists, with no obvious deformity or inflammation.  Results of x-rays of his wrists taken at the time showed that the predominant findings were that of arthrosis of the first carpometacarpal joint, more prominent on the left.  X-rays of his elbows show that there may be some very minimal osteoarthritic changes at the left elbow.  A September 2004 record reveals that the Veteran's VA clinic physician explained the radiology results to him.

In February 2005, the Veteran underwent VA examination.  He gave a history of being a recovering alcoholic who drank daily for approximately 20 years and stopped in 1984.  Soon after, he noted pain and discomfort in his left lower extremity, knee joints, ankles, and back.  The pain may or may not have been present beforehand but he was drinking and did not know if the drinking habit reduced the joint pain.  The Veteran currently complained of aches and pains in his knees, left ankle, wrists, thumbs, and elbows, intermittently, on a daily basis.  His symtoms all began approximately ten to fifteen years earlier.  The Veteran also had left elbow pain.  Upon clinical evaluation, the VA examiner diagnosed the Veteran with generalized arthritis in his knees, wrists, elbows, and thumbs, for the past ten to fifteen years, with associated pain and swelling.

Results x-rays of the Veteran's right hand taken in February 2005 revealed degenerative changes in the first carpometacarpal joint similar in appearance to prior examination.

An April 2007 VA examination report includes the Veteran's complaint of aches and pains over his hands, especially over the base of the right thumb.  Results of x-rays of his right hand taken at the time showed some evidence of osteoarthritis of the distal interphalangeal joints of the fingers and arthritic change over the first carpometacarpal joint of the base of the thumb with joint narrowing.  The clinical impression included symptomatic osteoarthritis of the base of the left thumb noted on examination and on x-rays that was not a service connected condition but was due to the normal aging process of the Veteran.

In March 2011, the Veteran underwent VA orthopedic examination.  The examiner reviewed the Veteran's medical records and performed a clinical evaluation.  The VA examiner noted that the Veteran's motor vehicle accident in service caused chronic neck strain, an avulsion laceration of the right scapular area, and the left tibia-fibula fracture that caused strain on the left and right knees, left ankle, and low back.  The Veteran said his shoulder pain was actually in his trapezius muscles radiating from the cervical spine area.  The VA examiner said that the Veteran did not have pain in the right scapular area and opined that the Veteran's pain in his shoulders was "radiated pain from...his service-connected cervical spine condition".  The Veteran further stated that he actually had no pain in the elbows or wrists, though they were examined and x-rayed during the current examination.  

The VA examiner reiterated that the Veteran denied any pain in the shoulder joints, wrists, or elbows.  He had no history of dislocation or recurrent subluxation, heat, redness, weakness, stiffness, or locking in the shoulders, elbows, or wrists.  It was noted that the Veteran did not have inflammatory arthritis or constitutional symtoms of the same, and did not use assistive devices for his shoulders, elbows or wrists.  

Furthermore, results of bilateral shoulder x-rays revealed mild to moderate degenerative change of the acromioclavicular joints, bilaterally, consistent with age, that the VA examiner opined was not likely caused by blunt trauma to the right infraspinatous muscle in service.  Bilateral elbow x-rays revealed very mild degenerative change of the left elbow involving the radial head that the VA examiner opined was consistent with normal aging and not likely the result of trauma in the military.  The Veteran's right elbow was normal.  Bilateral wrist x-rays revealed moderately advanced arthritic changes of the bilateral thumb metacarpal phalangeal joints consistent with normal aging, in the VA examiner's opinion, and not likely caused by trauma in the military.

The clinical diagnoses included no abnormality detected of the left shoulder as a result of military service, no evidence of bilateral elbow conditions as a result of military service, and no evidence of wrist conditions as a result of military service. 

Further, the VA examiner noted that the Veteran said he had no complaints regarding his thumbs.  Objectively, there was no decreased strength or dexterity of either hand or any of the fingers.  The diagnoses included bilateral thumb moderately advanced degenerative joint disease consistent with normal aging and not likely a result of military service.  

The rationale for the VA examiner's opinions included his review of service medical records, past medical history, physical examination, and radiologic studies.

Bilateral Wrist, Thumb, and Left Shoulder Disorders

The appellant has contended that service connection should be granted for bilateral wrist, thumb, and left shoulder and elbow disorders.  Although the evidence shows that the appellant currently has moderately advanced arthritic changes of the bilateral thumb metacarpal phalangeal joints, very mild degenerative change of the left elbow involving the radial head, and moderate degenerative change in his left shoulder, no competent evidence has been submitted to show that these disabilities are related to service or any incident thereof.  On the other hand, the record reflects that the first post service evidence of record of thumb pain is reported to be from 2001, over 30 years after the appellant's separation from service and the first report of wrist, shoulder, and elbow pain is from 2004, over 35 years after the Veteran's separation from service.  The absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that appellant failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.).  

Likewise, the March 2011 VA examiner reviewed the claims folder, interviewed and examined the Veteran, and opined that the Veteran's bilateral wrist, thumb, and left shoulder and elbow disorders were not due to military trauma.  The examiner provided a clear rationale for his opinion and leads to a finding that the Veteran's bilateral wrist, thumb, and left shoulder and elbow disorders were less likely than not related to service.  The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusions.  See Boggs v. West, 11 Vet. App. 334 (1998).  

Given the depth of the 2011 VA examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion probative and material to the Veteran's claims.  See Owens v. Brown, 7 Vet. App. 429 (1995).  The VA examiner's opinion is entirely consistent with that of the April 2007 VA examiner who diagnosed osteoarthritis of the Veteran's left thumb due to the normal aging process and not to service.

There are no grounds to grant the appellant's claims on a direct-incurrence basis.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 

Right Elbow Disorder

The appellant also seeks service connection for a right elbow disorder.  In the absence of proof of a current disability of a right elbow disorder, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. at 225.  Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability.  Brammer, 3 Vet. App. at 225.  In the absence of any competent evidence of a right elbow disorder, the Board must conclude the appellant does not currently suffer from such disability.  Without a currently diagnosed right elbow disorder, the Board must deny the appellant's claim.  See Degmetich v. Brown, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).

The March 2011 VA examiner reported that the Veteran's right elbow was normal.  See Boggs, supra.

The Veteran is competent to state that he has pain in the area of his upper extremities.  However pain is not analogous to disability.  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) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability.  On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted.  Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.).  The Veteran is not competent to diagnose any right elbow disability and even if he could, any claim to this effect is contradicted by the clinical evidence.  On VA orthopedic examination in March 2011, there was no right elbow disorder detected and the Veteran's right elbow was essentially normal.  In fact, there is no clinical corroboration that the Veteran has a chronic right elbow disorder and his claim is not established.  Brammer v. Derwinski, 3 Vet. App. at 225; Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). 

Without a currently diagnosed right elbow disability, there can be no valid claim of service connection.  Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for a right elbow disorder must be denied.  See Gilbert v. Derwinski, 1 Vet. App at 49.


All Claimed Disorders

The Board has considered the Veteran's contention that a relationship exists between his current bilateral wrist, thumb, elbow and left shoulder disorders, and his accident experienced during service.  In adjudicating these claims, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge.  See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). 

In this capacity, the Board finds the Veteran is competent to attest to the motor vehicle accident he experienced during service, and finds his statements of injury credible, especially in light of the service treatment records that support such a vehicular accident.  The Veteran, however, is not competent to provide an opinion that his bilateral wrist, elbow, thumb, and left shoulder disorders are due to his in-service motor vehicle accident as he does not have the requisite medical expertise. 

The Board has weighed the Veteran's statements as to his motor vehicle accident during service, with the service treatment records, post-service medical evidence, and the March 2011 VA medical opinion of record.  After weighing the lay and medical evidence, the Board finds that the lay evidence as to in-service incurrence and continuity of symptomatology is less convincing than the objective medical evidence of record and of less probative value here.  Although it is conceded that he had a vehicular accident during service, the fact remains that he not did seek treatment or claim compensation for these upper extremity disorders until over 30 years after separation from service.  Moreover, he did not report having elbow, wrist, finger, or shoulder pain to VA examiners in 1968, 1974, or 1977.  In fact, in April 2001, a VA clinician reported that the Veteran said that his thumb pain started in 1999 and, in February 2005, the VA examiner reported that the Veteran's joint pains started ten to fifteen years earlier.  The Veteran did not tell either examiner that his joint pains started during military service.  The Board considers the history provided by the Veteran for the purposes of medical treatment more probative than that provided in pursuit of his claim for VA compensation benefits.

The March 2011 VA examiner, who was aware of the Veteran's in-service motor vehicle accident per the Veteran's statements and review of the claims folder, concluded that his claimed bilateral wrist, thumb, elbow, and left shoulder disorders were not due to service.  The Veteran's contentions are outweighed by the medical evidence and opinion of the VA examiner that reflects that his bilateral wrist, thumb, and elbow, and left shoulder disorders are not due military service, including the 1965 motor vehicle accident. 

The negative clinical and documentary evidence post service for many years after service is more probative than the remote assertions of the Veteran.  The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties.  Savage v. Gober, 10 Vet. App. 488, 496 (1997). 

In sum, the Board is left with no documented complaints or findings of the bilateral wrists, thumbs, elbows, and left shoulder in service, no documented complaints or findings of the bilateral wrists, thumbs, elbows, and left shoulder until over 30 years after separation from service, and a medical opinion to the effect that such current bilateral wrist, thumb, elbow, and left shoulder disorders are not etiologically related to service.  Again, as detailed, the Board finds such opinion to be of more probative value than the Veteran's contentions. 

The questions involved regarding causation are medical in nature.  As discussed above, the medical opinion of the VA examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative.  Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence. 

A clear preponderance of the objective and probative medical evidence of record is against the Veteran's claims for service connection for bilateral wrist, thumb, and elbow and left shoulder disorders, and his claims must be denied.  The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim.  Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001).

B. Increased Ratings

The Veteran asserts that the current manifestations of his service-connected left lower extremity and right ring finger disabilities are more severe than is represented by the currently assigned ratings.  In oral testimony and written statements, he asserts that his left knee disability caused worsening pain and weakness (see Board hearing transcript at page 9).  The Veteran's wife noted that when he walked a lot, his ankle gave way and caused him to fall (Id. at 10).  The Veteran said he wore an ankle brace for approximately 10 years so falling was not a problem, unless he did not wear it that happened recently and he fell on his knees that were replaced (Id.).

The present appeal involves the Veteran's claim that the severity of his service-connected left lower extremity and right ring finger disabilities warrant higher disability ratings.  Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Board observes that the words "slight", "moderate", and "severe" 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 (2012).  It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). 

Regulations require that where there is a question as to which of two evaluations is to 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 (2012).

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2012).

In evaluating musculoskeletal disabilities additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40 (2012).  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45 (2012).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and 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 (2012).

The Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered.  38 C.F.R. §§ 4.40, 4.45.  The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations.  Id.  See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  

Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved, with a 10 percent evaluation assigned for limited motion that is noncompensable under the appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 

Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, but in the absence of limitation of motion a compensable rating for degenerative arthritis can be assigned when there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups (10 percent), or X-ray evidence of the same with occasional incapacitating exacerbations (20 percent).  Id.  

l. Left Lower Extremity

In a February 1969 rating decision, the RO granted service connection for residuals of a fracture of the left tibia and fibula and assigned a 20 percent disability rating under Diagnostic Code 5262.  In a January 1978 rating decision, the RO awarded a separate 10 percent disability rating for internal derangement of the left knee under Diagnostic Code 5257.  

In October 2004, the RO received the Veteran's current claim for an increased rating for his left lower extremity disability.  As noted, in the April 2010 rating decision, the RO assigned a temporary 100 percent rating from March 31, 2010 to April 30, 2011 and recharacterized the Veteran's disability as a left total knee arthroplasty that was assigned a 30 percent rating from May 1, 2011.

Diagnostic Code 5055 provides criteria for evaluating impairment arising from the prosthetic replacement of a knee joint.  For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5055.  In this case, that requirement has been fulfilled, as a total rating was assigned from March 31, 2010 to April 30, 2011.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5055. 

After the one-year period following implantation, Diagnostic Code 5055 provides that the minimum disability rating that may be assigned, post-knee replacement, is 30 percent.  Id.  A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity.  Id.  With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula).  Id.

Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating.  Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating.  38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012).  Ankylosis is the immobility and consolidation of a joint.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees, a 10 percent rating is assigned.  If flexion of the knee is limited to 30 degrees, a 20 percent rating is in order, and a 30 percent rating is warranted for knee flexion limited to 15 degrees.  Id.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees, a 10 percent rating is assigned.  If extension of the knee is limited to 15 degrees, a 20 percent rating is in order.  A 30 percent rating is assigned for limitation of extension of the leg to 20 degrees, and a 40 percent rating is assigned for limitation of extension of the leg to 30 degrees.  Id.

In a precedent opinion by the VA General Counsel, it was held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004).  The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable.  Id.  

In a separate precedent opinion, the VA General Counsel held that separate compensable ratings may also be assigned in cases where the service-connected disability includes both arthritis and instability, provided, of course, that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997).  In this regard, under Diagnostic Code 5257, impairment of the knee, manifested by recurrent subluxation or lateral instability, will be rated 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent when severe.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Impairment of the tibia and fibula is rated under Diagnostic Code 5262 that provides a 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate knee or ankle disability.  38 C.F.R. § 4.71a, Diagnostic Code 5262.  A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked knee or ankle disability, and a 40 percent evaluation is warranted where nonunion of the tibia and fibula is productive of loose motion requiring a brace.  Id. 

The knee is considered a major joint.  38 C.F.R. § 4.45(f).  The normal range of motion of the knee is from zero to 140 degrees.  38 C.F.R. § 4.71, Plate II (2012). 

Upon review of the probative medical evidence of record, the Board finds that, prior to March 31, 2010, giving the Veteran the benefit of all doubt, a 30 percent rating, but no higher is warranted for his service-connected residuals of a fracture of the left tibia and fibula with one-inch shortening, but a rating in excess of 30 percent is not warranted on and after May 1, 2011, for a total left knee arthroplasty.  The Board further concludes that a rating in excess of 10 percent for internal derangement of the left knee is not warranted prior to March 31, 2010. 

As noted, in October 2004, the RO received the Veteran's current claim for an increased rating for his left lower extremity.

The pertinent evidence of record includes VA treatment records and examination reports, dated from 2003 to 2011, that reflect the Veteran's complaints of left lower knee pain and instability and left ankle tenderness and instability.

VA outpatient records indicate that, in April 2003, the Veteran hurt his left ankle on steps.  Results of x-rays of the ankle taken at the time showed marked swelling of the soft tissues around the lateral malleolus with no recent fractures and an old healed fracture in the distal third of the tibia and fibula, both healed with slight angulation.  X-rays of the Veteran's left foot revealed dorsiflexion at the metatarsal phalangeal joint with normal individual bones.

When seen in the VA outpatient orthopedic clinic in February 2004, the Veteran complained of an unstable left ankle since his tibia-fibula fracture in service that caused his ankle to invert and give way.  He had an acute injury in April 2003 and, since then, his feeling of inversion instability worsened to the point that he was unable to depend on his ankle.  He used a brace to stabilize it but found it annoying and wanted something done, if possible.  

Objectively, the Veteran demonstrated the deformity at the level of his fracture site with the distal fragments being shifted laterally.  There was definite reduced mobility of the ankle joint and dorsiflexion above the right ankle was restricted as was plantar flexion.  When tested on inversion instability, he winced and appeared to open up both into an anterior drawer and inversion posture compared to the right side.  New x-rays and a magnetic resonance image (MRI) were ordered.

The Veteran was evaluated again in the VA outpatient orthopedic clinic in March 2004 regarding his left ankle.  He complained of left ankle instability since his tibia-fibula accident in service that caused inversion injuries with frequent falls, most recently in April 2003.  Since then, he obtained an ankle lace-up brace and had no episodes of instability but was frustrated with having to wear the brace constantly.  He was very active as a store manager, participated in heavy lifting, and was on his feet all day.  He would prefer surgical treatment to restore his ankle stability rather than wearing a brace.  

Objectively, the Veteran had clinical deformity evident of an old tibia-fibula fracture with notable swelling over the lateral ankle ligament.  There was tenderness to palpation over the anterior talofibular ligament (ATFL) and calcaneofibular (CFL) ligaments.  The examiner was unable to elicit an anterior drawer sign.  The Veteran had full free range of motion about the ankle but it was most tender in inversion.  It was noted that results of x-rays of his left ankle taken at that time showed a laterally displaced tibia-fibula that healed.  His tibiotalar joint space was well maintained.  

Results of the MRI of the Veteran's left ankle taken in March 2004 were interpreted to show an anterior talofibular ligament thickening consistent with an old injury and the CFL looked somewhat attenuated.  The clinical diagnosis was left lateral ankle instability.  The Veteran was advised that, if nonoperative treatment such as the ankle brace decreased the frequency of his ankle sprains, that it should be continued.  He was adamant regarding surgical treatment.  A heel wedge was offered as an alternative form of treatment, but the Veteran refused.

VA outpatient records show that, in May 2004, the Veteran was evaluated again in the orthopedic clinic regarding his concern that examiners were unable to account for instability in his ankles due to any osseous or ligamentous abnormality.  It was noted that results of his MRI were non-diagnostic as were his recent standing x-rays.  Objectively, the Veteran had no anterior drawer sign and was slightly tender over the distal fibula and slightly over the subtalar joint.  He had mal-alignment of his lower extremity with adequate subtalar motion without pain.  Results of standing x-rays taken at that time demonstrated no significant subtalar or ankle arthritis.  The Veteran had an anterior spur on his ankle but no other abnormality.  The assessment was persistent lateral ankle instability.  A new lace-up and ankle brace was prescribed if he thought it would be useful.

In July 2004, the Veteran complained of worsening aches and pains in his knees with no obvious deformity or inflammation.  Results of x-rays of the Veteran's bilateral knees taken in July 2004 revealed osteoarthritic changes slightly more prominent on the right.

A January 2005 VA outpatient orthopedic clinic record indicates that the Veteran was seen for his left ankle instability.  He was placed in a lace-up ankle brace in his last visit to help with persistent lateral ankle instability that he said significantly improved it and reduced the frequency of the instability.  The Veteran had some pain over the proximal portion of the fracture that was nearly subcutaneous.  Objectively, the Veteran had good subtalar motion, with minimal pain.  The assessment was lateral ankle instability and subtalar instability. 

The February 2005 VA examination report reveals that the Veteran wore a one-inch lift in his shoe.  He worked as a general store manager for a Dollar General store.  He complained of pain and discomfort over his left tibia area with prolonged standing and walking and if he bumped it or applied pressure over the healed fracture region.  The Veteran had aches and pains with associated knee swelling more so on the left one in the last fifteen years.  His left ankle also gave out and VA issued an ankle brace two years ago.  Since then, he had no episodes of instability or giving out of the left ankle.

The Veteran complained of left knee pain and swelling with walking more than fifteen to twenty minutes and standing after thirty minutes.  He denied any fatigue or weakness associated with the pain but had a feeling of lack of endurance with walking more than ten or fifteen minutes.   The Veteran had occasional flare ups of aches and pains in his knees and left ankles with some lack of endurance.  On repetitive use on standing more than 30 minutes or walking more than 15 to 20 minutes, he had increased pain and lack of endurance over his knees and left ankle that required him to sit down.

Objectively, the Veteran had a left ankle brace and one-inch lift in his let shoe.  He did not walk with any external support or a cane.  Range of motion of the Veteran's knees was extension from 0 degrees to flexion of 115 degrees with pain over the anterior between 100-115 degrees.  There was mild crepitation over the patellofemoral joint with minimal discomfort when flexing and extending the knees, bilaterally.  Both knees were stable, with negative anterior and drawer signs and negative Lachman's test.  There was no medial or lateral instability of either knee.  

The Veteran also had full range of bilateral ankle motion.  There was some instability in the left ankle with tenderness and pain on the lateral side of the ankle.  There was no soft tissue swelling, thickening, redness, or increased warmth over either ankle joint.  There was a bony prominence over the distal left tibia and fibula that was tender and painful on palpation.  There was no instability over the old fracture area.  The general alignment clinically of the fracture was normal.  The VA examiner noted that the July 2004 x-rays revealed bilateral mild patellofemoral arthritis in both knees.  The clinical impression included a history of a closed fracture of the distal tibia and fibula on the left side that subsequently healed with a one inch shortening and, over the last ten to twenty years, arthritic-like symtoms over the knees, particularly the left one, associated with pain and swelling about the knee.  Chronic lateral instability of the left ankle with pain and swelling was also noted.  

The VA examiner commented that the Veteran's residuals of the fracture of the tibia/fibula were on repetitive activity or use of it for more than fifteen to twenty minutes standing or walking, he had increased pain and lack of endurance of the left lower extremity that required him to sit.  As to his knees, with increased activity of more than fifteen to twenty to thirty minutes, the Veteran had increased pain, swelling, with pain, and associated lack of endurance.  As to his left ankle, he had residuals of instability laterally associated with pain on walking on rough terrain and grass and giving out several times over a several year period and treated successfully the last two years with a continuously worn ankle brace.

The Veteran underwent VA examination in April 2007.  According to the examination report, after service, he worked for several retail drug stores, most recently as a general manager that required being on his feet all the time.  He noticed increased pain over his left knee and lower extremity.  On walking more than one half hour to 45 minutes he had to sit and rest.  Walking on rough terrain, grass, or going up and down stairs, caused aches and pains over his left knee and tibia area.  He denied locking or giving out of the knee.  There was no associated weakness or fatigue with repetitive activity that caused knee pain and denied locking.  At times, his knee gave out on him.  He took arthritis medication.

Further, the Veteran used a left ankle brace for the past three or four years and did well with it.  He also used a lift in his left shoe since the accident in service.  He continued working until two or three years earlier when he noticed memory loss and concentration difficulty.  He received SSA for memory loss for the last year and a half.  On repetitive activity, such as walking more than one half hour, he had persistent aches and pains over the healed fracture area with left lower extremity weakness but no lack of endurance or fatigue.

Objectively, the Veteran had no current pain or discomfort over his left knee and had some discomfort over his left distal tibia area.  On standing, the general alignment of his left knee was normal.  There was no fluid or effusion noted.  On compression of the patella, he was nontender and nonpainful.  On palpating the medial and lateral side of the patella, there was some discomfort and pain.  The Veteran was able to fully extend his left knee and flex it to 120 degrees with some mild discomfort over the patellofemoral joint with minimal crepitation.  He was nontender and nonpainful over the medial and lateral joint margin.  McMurray and Apley tests for meniscal tears were negative.  The left knee was stable.  There were no anterior or posterior drawer signs and no medial or lateral instability of the knee at full extension or at 30 degrees of flexion.  

Examination of the Veteran's fractured tibia revealed that, on standing, the general alignment of the left lower extremity was normal.  He had a bony prominence over the distal tibia and fibula that was tender and painful on palpation but, on attempted movement of the area, there was no motion or movement at all.  There was shortening of the left leg as compared to the right.  There was no angular deformity over the fracture of the distal tibia or over the ankle or foot region.  Motor power over the calf and thigh were essentially normal (5/5).  Sensation over the left tibia area as well as the left ankle was intact to light touch.

At the time of examination, the Veteran wore tennis shoes with an inch lift in the left shoe and an ankle brace on the left side.  He was nontender and had no pain on palpation of the left ankle.  He was able to dorsiflex his ankle to 5 degrees and plantar flex the ankle to 20 degrees with some discomfort over the anteriolateral aspect of the ankle on flexion and extension.  The ankle was stable and there was no instability noted over the ankle anterior to posterior, medially, or laterally.  Sensation over the foot was intact and foot motor power was also essentially normal (5/5).  There was no soft tissue swelling, thickening, redness, or increased warmth over the left knee or left ankle.  

Results of x-rays of the Veteran's left knee taken at the time revealed mild narrowing of the patellofemoral joint with some marginal patellar spurring. The medial and lateral joint compartments looked intact and were well preserved.  X-rays of the tibia revealed a healed fracture of the distal tibia and fibula with deformity.  There were no acute fractures noted and no destructive bony lesions noted.  Diagnoses included a closed displaced fracture of the left distal tibia and fibula in service that subsequently healed with shortening of the left lower extremity of one inch with persistent aches and pains over the fracture area on prolonged walking and increased activity with associated weakness.  Another diagnosis was left patellofemoral osteoarthrosis of a mild degree noted on current x-rays.  The Veteran complained of chronic pain over the left knee area for the past 30 years after his left tibia fracture.  

A November 2007 VA outpatient record indicates that the Veteran had a healed left distal tibial fibula fracture complicated deformity angulation.

The Veteran was seen in the VA outpatient orthopedic clinic in February 2009 for evaluation of chronic left knee pain.  He said his left knee swelled and hurt but he was unable to localize it to one side or the other.  Objectively, there was essentially full range of motion of the left knee that was stable to varus, valgus, and anterior drawer testing.  There was no obvious effusion and the examiner could not detect any significant tenderness to palpation over the medial or lateral joint lines.  Results of x-rays taken at the time showed relatively good thickness of the cartilage with no bony erosions noted.  The assessment was left knee pain of undetermined etiology and a MRI was recommended.

According to April 2009 VA physical therapy records, the Veteran fell several months earlier while shoveling snow and exacerbated his bilateral knee pain.  In May 2009, he was treated for left knee pain and a meniscal tear.  He fell from a ladder two weeks earlier and had increased left knee pain.  He walked with a rollator walker and had a left antalgic limp.  There was very modest left knee effusion but no erythema or warmth.  Range of motion of the left knee was from 5 to 115 degrees with complaints of pain at the end of flexion and extension.  The assessment was left knee pain exacerbated by a fall from a ladder.  The physical therapist said that the Veteran actually improved with his motion and understood the importance of maximizing his range of motion and strength prior to surgery.

In May 2009, the Veteran was evaluated in the VA outpatient orthopedic clinic for complaints of left knee pain.  He described left leg pain as going down his anterolateral thigh, his knee, and going down his lateral calf.  The Veteran also complained of his knee giving out from pain but no true mechanical symtoms.  He had a history of an MRI that showed medial and lateral meniscus tears and arthritis.  Upon clinical evaluation, the assessment was left knee, thigh, and calf pain of uncertain etiology.  The examiner said it seemed more likely neurogenic claudication.

The Veteran was evaluated in the VA orthopedic clinic again in June 2009 for left knee pain that he experienced for the past six to eight months with intermittent knee swelling and warmth.  He also noted popping, clicking, and giving way of the left knee.  The Veteran used a cane for the past seven months to ambulate.  His history of left tibia and fibula fracture in service was noted and "he had no prior problems with his left leg until 7 to 8 months ago".  

Objectively, the Veteran had a swollen left knee that was extremely tender to palpation in a diffuse region.  He was tender in the medial and lateral joint lines and at both superior and inferior poles of the patella.  Any maneuver made him jump with pain.  The Veteran had a negative anterior and posterior drawer test and he had a negative Lachman's test.  The knee seemed stable to varus and valgus stress but was extremely guarded.  He had pain with McMurray's maneuver.  Range of motion of the left knee was from 10 to 100 degrees.  Results of x-rays performed at the time were considered unchanged from those taken in December 2008 that showed minimal joint space narrowing with patellofemoral arthritis.  A diagnostic arthroscopy was advised.  It was also noted that results of a MRI performed in March 2009 showed a tear in the medial and lateral meniscus.

In March 2010, the Veteran underwent a left total knee arthroplasty.

A May 2010 VA outpatient surgery clinic record reflects that the Veteran was seen for follow up of his total left knee replacement.  Since last seen, he was noted to have made excellent progress with therapy.  He continued to have marked sensitivity about the incision that he rubbed with Vitamin E cream.  Objectively, his gait was excellent with one cane.  Range of motion of the left knee was from 0 to 110 degrees with no instability or effusion and minimal warmth.  There was sensitivity of the knee anteriorly over the incision and the Veteran was intact from a neurovascular view.  Results of x-rays revealed a satisfactory left total knee arthroplasty and the clinical impression was satisfactory progress after left total knee arthroplasty.  The Veteran was advised to continue his rehabilitation program and continue desensitization. 

When seen in the VA outpatient surgery clinic in December 2010, the Veteran reported left knee discomfort after he played a round of golf.  He said it took him a day or two to recover from this.  He denied any swelling or giving way.  Objectively, the Veteran had a mildly antalgic gait on the left with satisfactory alignment and nearly normal quad strength (4/5).  Range of motion of the left knee was from 0 to 100 degrees with no crepitus, effusion or instability.  There was diffuse tenderness to palpation.  

The March 2011 VA examination report indicates that the Veteran underwent a left total knee arthroplasty on March 31, 2010.  Results of x-rays of his knees taken in December 2010 showed hardware consistent with the total knee arthroplasty of femoral and tibial structures without loosening or other complications.  The Veteran complained of left knee pain that he rated as a 4 on a scale of 1 to 10 that flared to six out of ten on walking 100 yards, climbing stairs, or a change in barometric pressure.  His pain level was maintained by taking prescribed medications that caused drowsiness and constipation.  He had stiffness but no locking in his knees and had knee weakness exacerbated by walking 100 yards.  The Veteran had instability and giving way of both knees but no history of dislocation or recurrent subluxation of his knees.  He did not use a cane, crutch, or walker, or knee brace.

The Veteran's activities of daily living were limited mainly by his knees and left ankle in that he was unable walk more than 100 yards and was unable to do strenuous yard work or home maintenance.  The Veteran said he was a manager of Rite Aid stores until 2004 when that occupation ceased because of cervical spine, low back, knee, and ankle pain.  He was retired since and received SSA disability benefits since 2005.

Objectively, there was no tenderness or joint effusion of the knees but there was bilateral knee instability with guarding of knee movement.  Range of motion of the left knee was flexion from 0 to 110 degrees actively, and 0 to 120 degrees limited by stiffness but not pain.  The Veteran as unable to perform any repetitive motion exercises such as deep knee bends or squats.  The VA examiner said it would be speculative to state what range of motion would occur of the knees after repetitive motion.  The Veteran's limp caused by shortening of the left lower extremity did not change after walking 75 yards from the Waiting Room to the Exam Room.  According to the VA examiner, having walked 75 yards could be considered a repetitive motion exercise.  Diagnoses included status post left total knee arthroplasty caused by degenerative joint disease caused by stresses caused by shortening of the right tibia and fibula caused by fracture in the military.

a).  Rating In Excess of 20 Percent Prior to March 31, 2010 For Residuals Of A Fracture of The Left Tibia and Fibula, With One-Inch Shortening

Prior to March 31, 2010, there was no evidence of nonunion of the Veteran's left tibia and fibula disability productive of loose motion requiring wearing a brace such as to warrant a 40 percent rating.  The left lower extremity was symptomatic and the Veteran exhibited limitation of motion of the ankle and knee.  He had falls from the leg giving way and needed a lace up ankle brace to keep the leg stable.  His function was significantly limited, but he retained motion in all affected joints and retained function in the lower extremity.  The exhibited dysfunction was less than marked.  VA clinicians and examiners repeatedly reported that the Veteran had a "healed" left tibia and fibula fracture.  There is no indication that pain, due to disability of the left lower extremity, caused functional loss greater than that contemplated by the 20 percent rating assigned herein prior to March 31, 2010.  See DeLuca and Mitchell, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59.  

Finally, the Board recognizes that, in its August 2012 rating decision, the RO granted service connection for left ankle strain and weakness and assigned a separate 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012) (that evaluates limited ankle motion), effective since October 2004.  

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2012).  However, an exception to this is the anti-pyramiding provision of 38 C.F.R. § 4.14 (2012), that states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  In Esteban v. Brown, 6 Vet. App. 259 (1994), it was held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which provided that a veteran may not be rated separately for the described conditions.  Therefore, the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14.  Esteban, at 261.  The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions."  Id. at 262.

Thus, assigning multiple ratings for the Veteran's left ankle disability based on the same symptoms or manifestations would constitute prohibited pyramiding.  38 C.F.R. § 4.14.  However, while the RO assigned a separate rating for left ankle limited motion and weakness, in reaching its determination herein, the Board considered the Veteran's left ankle lateral instability.

Accordingly, the Board finds that, prior to March 31, 2010, a rating greater than 20 percent is not warranted for his service-connected residuals of a left tibia and fibula fracture.  

b)  Rating In Excess of 30 Percent from May 1, 2011 for a Total Left Knee Arthroplasty

Here, in March 2011, the Veteran was afforded a VA orthopedic examination.  Upon objective examination, flexion his left knee was to 110 degrees (actively) and to 120 degrees (limited by stiffness not pain) (normal is to 140 degree) and his extension was 0 degrees (normal).  38 C.F.R. § 4.71a.  The examiner determined that there was evidence of instability and guarding of the left knee but did not report findings of anklyosis, incoordination, weakened movement, or excessive fatigability with use.  X-rays of the Veteran's left knee taken in December 2010 did not document nonunion of the Veteran's tibia and fibula.  The examiner diagnosed the Veteran with "status post left total knee arthroplasty caused by degenerative joint disease caused by stresses caused by shortening of the right tibia and fibula".

Regarding the DeLuca and Mitchell cases, the March 2011 VA examiner noted that the Veteran's left knee range of motion was limited by stiffness but not pain.  The examiner also noted that the Veteran was unable to perform any repetitive motion exercises, such as deep knee bends or squats and to state what range motion would occur of the knees after repetitive motion would be speculative.  But the VA examiner then commented that the Veteran's limp caused by shortening of the left lower extremity did not change after walking 75 yards from the Waiting Room to the Exam Room and having walked that distance "could be considered as repetitive motion exercise".  Thus, the VA examiner appeared to find that there was no additional loss of range of motion in the left knee after repetitive motion or due to painful motion, weakness, impaired endurance, incoordination, subluxation, or instability.  There was no finding of left knee tenderness or joint effusion.  Mitchell, 25 Vet. App. at 32; see 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205-206.

Since May 1, 2011, the claims file does not contain any evidence contrary to the March 2011 VA examination. 

Applying the above criteria to the facts of this case, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his left knee disability, since May 1, 2011.  The evidence of record does not establish that the Veteran has ankylosis of the left knee, limitation of extension of the left leg to 30 degrees, or weakness in the left leg.  Additionally, the evidence of record does not establish that he has severe painful motion of the left knee.  Although the Veteran does have stiffness of the left knee, the evidence of record does not establish that this stiffness is commensurate with severe painful motion.  The Veteran's extension of the left knee is normal, and his flexion of the left knee, even when considering his stiffness, pain, and functional loss, is 110 degrees at worst (normal is 140 degrees).  Such findings do not represent a severe impairment of the left knee. 

Finally, the evidence of record does not document that the Veteran's left knee is manifested by nonunion of the tibia and fibula, with loose motion, requiring a brace. Thus, the evidence of record does not establish that the Veteran is entitled to the next higher disability rating for his service-connected left knee disability under any of the available rating criteria.  38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262.

Regarding DeLuca and Mitchell, even when taking into consideration the additional limitations identified by the examiner, the evidence of record does not establish that the Veteran's left knee disability has been manifested by severe painful motion or extension limited to 30 degrees, to warrant the next higher disability rating based on limitation of motion of the left knee.  Mitchell, 25 Vet. App. at 32; see 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205-06.  There is no indication that pain, due to disability of the left lower extremity, caused functional loss greater than that contemplated by the 30 percent rating assigned after May 1, 2011.  38 C.F.R. §§ 4.40, 4.45; DeLuca.  A separate evaluation for pain is not for assignment.  Spurgeon. 

The Board has considered the potential applicability of other diagnostic codes but finds that none are available.  38 C.F.R. § 4.71a.

In forming this decision, the Board has considered the Veteran's lay statements, including his testimony at a Board hearing.  However, his statements concerning the severity of his left knee disability are outweighed by the objective medical findings to the contrary.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. at 310; see also 38 C.F.R. § 3.159(a)(2); see also, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

While the Veteran underwent left knee arthroplasty, the evidence shows that left knee scarring is not painful or tender to touch or adherent.  As such, the Board finds that a separate compensable evaluation for scars on the left knee is not warranted.  See 38 C.F.R. § 4.118, Diagnostic Codes 7803-7805 (2012); see also Esteban v. Brown, 6 Vet. App. at 261. 

The preponderance of the probative evidence of record is against the Veteran's claim for a rating in excess of 30 percent for a total left knee arthroplasty on and after May 1, 2011.  Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt.  38 U.S.C.A. § 5107(b).  See generally Gilbert; Ortiz, supra.


2.  Rating In Excess of 10 Percent for Internal Derangement of the Left Knee Prior to March 31, 2010.

The Veteran is also in receipt of a separate 10 percent rating, prior to March 31, 2010, for his left knee internal derangement under Diagnostic Code 5257.  Impairment of the knee, manifested by recurrent subluxation or lateral instability that is moderate warrants a 20 percent rating and a 30 percent rating is warranted when it is severe.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Here, the February 2005 VA examiner did not report any findings of instability of the left knee.  Both knees were stable with no medial or lateral instability and anterior drawer sign and Lachman's test were negative, bilaterally.  Similarly, the April 2007 VA examiner also reported that the Veteran had a stable left knee.  Although, in early 2009, no more than slight instability or subluxation was demonstrated at any time.  The findings do not meet or approximate that commensurate with moderate subluxation or lateral instability of the left knee such as to warrant a rating in excess of the currently assigned 10 percent under Diagnostic Code 5257.  

The preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent, prior to March 31, 2010, for internal derangement of the left knee.  Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt.  38 U.S.C.A. § 5107(b).  See generally Gilbert; Ortiz, supra.

3.  Compensable Rating for Residuals of a Fracture of the Right Ring Finger

The record reflects that the February 1969 rating decision also granted service connection for a residual fracture of the right ring finger that was assigned a noncompensable disability evaluation under Diagnostic Code 5299.  The disability was subsequently evaluated as non-compensable under Diagnostic Code 5299-5227 and, more recently evaluated as noncompensable under Diagnostic Code 5230.  The Veteran's increased rating claim was received by the RO in October 2004.

When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first two digits will be selected from that part of the schedule most closely identifying the body part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.  38 C.F.R. § 4.27.  

Pursuant to 38 C.F.R. § 4.71a, a maximum disability rating of 10 percent may be assigned under Diagnostic Code 5223 for favorable ankylosis of the long and ring finger of one hand.  38 C.F.R. § 4.71a, Diagnostic Code 5223 (2012).  A higher disability rating of 20 may be assigned under Diagnostic Code 5219 for unfavorable ankylosis of the long and ring fingers of one hand.  38 C.F.R. § 4.71a, Diagnostic Code 5219 (2012).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5227, favorable or unfavorable ankylosis of the right ring or little (major) finger is rated as noncompensable.  Extremely unfavorable ankylosis of the right ring or little finger may be rated as an amputation and rated under Diagnostic Code 5156.  See 38 C.F.R. § 4.71a, Diagnostic Code 5227.  Under the provisions of Diagnostic Code 5156, a 10 percent rating will be assigned for amputation of the ring or fifth finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto.  A regulatory note following Diagnostic Code 5215 states that extremely unfavorable ankylosis of a finger exists if all the joints of the finger are ankylosed in extension or in extreme flexion, or if there is rotation and angulation of bones.  38 C.F.R. § 4.71a, Diagnostic Code 5215, Note (a) (2012).  38 C.F.R. § 4.71a, Diagnostic Codes 5156, 5215 (2012).

Diagnostic Code 5230 concerns limitation of motion of the ring or little finger.  Any limitation of motion merits a noncompensable evaluation thereunder.  38 C.F.R. § 4.71a, Diagnostic Code 5230.

Zero degrees of flexion for the index, long, ring, and little fingers represents the fingers fully extended, making a straight line with the rest of the hand.  Full range of motion for the index, long, ring, and little fingers is metacarpal phalangeal joint (MCP) flexion from zero to 90 degrees, proximal interphalangeal joint (PIP) flexion from zero to 100 degrees, and distal interphalangeal joint (DIP) flexion from zero to 70 or 80 degrees.  38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (1). 

The VA medical records, dated from 2003 to 2011, are devoid of any reference to complaints associated with the Veteran's service-connected right ring finger disability. 

The February 2005 VA examination report indicates that the Veteran is right-handed.  He denied any treatment regarding his right finger after discharge from service.  He had no difficulty with his right ring finger or right hand.  The Veteran denied a history of pain, lack of endurance, fatigue, weakness, or any type of problems regarding his right finger and hand since the accident in service.  

Objectively, the Veteran's right ring finger revealed good radial pulse, with no obvious soft tissue swelling, pain, discomfort, increased warmth over the joints of all his fingers as well as his thumb.  There was full range of motion of all his finger joints at the MCP joint, the PIP joint, and the DIP joint of the right hand.  There was no angular or rotator deformity of the right ring finger.  There was no ligament instability noted over the DIP, PIP, and MCP joint of the ring finger.  There was no sensory or circulatory loss or impairment over the ring finger, or any of the fingers of the right hand.  The hand grip was complete and the Veteran could flex his fingers to the distal palmar crease completely and extend his fingers completely.  Diagnoses included healed fracture of the right ring finger that was service-connected with no residual signs or symtoms.

VA medical records include the February 2005 x-ray report of the Veteran's right hand that showed an osseous deformity of the fifth metatarsal related with a remote fracture and degenerative changes in the first carpometacarpal joint.

The April 2007 VA examination report describes the Veteran's history of injury to his right hand in service when he was told he had a fracture of the 4th and 5th metacarpals.  He was placed in a splint and wrapped it for several days to a few weeks.  It was not casted and healed in approximately one month.  The Veteran had no further treatment regarding his hand since that time.  He complained of aches and pains over his hands, especially over the base of the right thumb but denied pain, discomfort, or swelling over the lateral for metacarpals or the lateral four fingers.

Objectively, examination of the Veteran's right hand revealed no discomfort or pain over his right hand that had a good right radial pulse with no obvious deformities or soft tissue swselling over the right wrist, hand, or fingers.  He had full flexion of all his finger joints and sensation over the right hand and fingers was intact to light touch and circulation was normal.  Results of x-rays taken at the time did not reveal evidence of a fracture being present over the 3rd, 4th, or 5th digit.  There was some evidence of osteoarthritis involving the DIP joints of the fingers.  Diagnoses included a fracture of the right ring finger by history of a service-connected injury of 1966 that healed uneventfully and successfully.  On current clinical examination, the VA examiner found no pain, discomfort, swelling, or deformity over the right fourth finger or fourth metacarpal nor on x-rays was there evidence of a prior fracture being present over the fourth digit.

The March 2011 VA examination report indicates that the Veteran "no longer [had] any complaints regarding a left ring finger crush injury" that occurred in 1965 in service.  His only trauma was to the "distal phalanx of the left ring finger" in 1965 in service.  It was noted that the Veteran was right-hand dominant and had no decreased strength or dexterity of either hand or any of the fingers.  Occupational functioning was not affected by the left ring finger condition and there was no flare-up of joint pain affecting the hands or fingers.

Objectively, bilateral 2nd through 5th finger MCP joint flexion was from 0 to 90 degrees/90 degrees actively and passively without limitation by pain and stiffness.  Bilateral 2nd through 5th PIP joint flexion was from 0 to 100 degrees/100 degrees actively and passively without limitation by pain and stiffness.  Bilateral 2nd through 5th DIP joint flexion was from 0 to 70 degrees/70 to 80 degrees actively and passively without limitation by pain and stiffness.  The Veteran performed three repetitions of grasping the VA examiner's hands in his, following which there was no change in range of motion of any of the joint of the hands or fingers.  There was no evidence of increased weakness, pain, fatigability, or incoordination of the hands or fingers after repetitive motion.  

Bilateral 2nd through 5th metacarpal and proximal interphalangeal joint position function was 30 degrees of flexion/30 degrees.  The Veteran could easily touch the tips of both thumbs to the tips of his 2nd through 5th fingers bilaterally.  When he made a fist, there was not distance between the tips of the fingers and the proximal palm crease.  Diagnoses included crush injury of the left distal ring finger in the military.

Preliminarily, the Board notes that the March 2011 VA examiner evidently mistakenly identified the Veteran's left, rather than right, distal ring finger as having an injury in service.  However, clinical findings were reported for both hands.  Thus, the error is of no consequence in the Board's determination herein.

Here, since the Veteran filed his increased rating claim in October 2004, there is not one medical record or report reflecting a complaint or diagnosis of a residual associated with his service-connected right ring finger.  The 2005, 2007, and 2011 VA examiners reported full range of motion of his right ring finger with no evidence of ankylosis or any findings remotely commensurate with amputation such as to warrant a compensable rating.  38 C.F.R. § 4.71a, Diagnostic Codes 5227 and 5230.  In fact, during the recent March 2011 VA examination, the Veteran denied any complaints associated with the in-service crush injury to his right ring finger.  

The preponderance of the evidence is against the Veteran's claim for a compensable rating for residuals of a fracture of his right ring finger.  Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt.  38 U.S.C.A. § 5107(b).  See generally Gilbert; Ortiz, supra.

Left Lower Extremity and Right Ring Finger Disabilities

In view of the holding in Hart, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected left lower extremity and right ring finger disabilities, as the Court indicated can be done in this type of case.  Based upon the record, the Board finds that at no time since the Veteran filed his increased rating claim have the disabilities on appeal been more disabling than as currently rated under the present decision of the Board.

The Board has also considered whether the Veteran's left lower extremity and right ring finger disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.

The matter of entitlement to a TDIU is addressed in the Remand below.  See Rice v. Shinseki, 22 Vet. App. at 447.



ORDER

Service connection for bilateral wrist, elbow, and thumb, and left shoulder disorders, is denied.

A rating in excess of 20 percent for residuals of a fracture of the left tibia and fibula, with one-inch shortening, prior to March 31, 2010, is denied.

A rating in excess of 30 percent for a total left knee arthroplasty on and after May 1, 2011, is denied.

A rating in excess of 10 percent for internal derangement of the left knee prior to March 31, 2010, is denied.

A compensable rating for residuals of a fracture of the right ring finger is denied.


REMAND

The Veteran filed his current claim for an increased rating in October 2004.  

As noted above, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a TDIU as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. at 447.  

Here, the record contains conflicting information regarding the impact of the Veteran's service-connected left lower extremity and right ring finger disabilities on his ability to work.  Notably, in an August 2004 written statement, a VA psychiatrist reported that the Veteran was under care and evaluation for decline in his mental functioning that affected his ability to perform his job.  Then, in 2005, the SSA found the Veteran totally disabled and eligible for benefits due to organic mental disorders (chronic brain syndrome) and affective disorders and, in a January 2007 signed statement, a VA psychiatrist reported that the duration of the Veteran's disability was permanent and total.  

But, in October 2010, the Veteran testified that his left leg disability affected his earning capacity and he had to stop work approximately six years earlier (see Board hearing transcript at page 8).  Further, in March 2011, the VA examiner reported that Veteran said he was a manager of Rite Aid stores until 2004 when that occupation ceased because of cervical spine, low back, knee, and ankle pain.  However, in April 2011, the Veteran has told a VA social worker that he had to retire "medically about 8 years ago due to ...memory problems".  As noted, in August 2012, the RO granted service connection for right shoulder, thoracolumbar, cervical, right knee and bilateral ankle disabilities.  To date, the issue of a TDIU has issue has not been considered by VA and it is referred to the RO for appropriate action.

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran an examination to determine the effect his service-connected disability has on his ability to work.  The claims file should be made available to the examiner.  The examiner should indicate whether it is as likely as not (50 percent probability or greater) that service-connected disability precludes the Veteran from pursuing gainful employment, in light of his education and employment experience.   A rationale for the opinion should be included.  

2.  Adjudicate the matter of entitlement to a TDIU (see Rice v. Shinseki, supra) in light of all the evidence of record since the Veteran filed his claim for an increased rating in October 2004.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response.

No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).   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. 2012).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs