Citation Nr: 1301840 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-28 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected patellofemoral syndrome of the left knee (hereinafter, "left knee disorder"). 2. Entitlement to an initial rating in excess of 10 percent for service-connected patellofemoral syndrome of the right knee (hereinafter, "right knee disorder"). 3. Entitlement to an initial compensable rating for service-connected hemorrhoids. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to August 2005, with service in Iraq from June 2004 to June 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional office (RO) in New York, New York, which, in pertinent part, established service connection for disabilities of both knees and external hemorrhoids. Initial ratings of 10 percent were assigned for the knee disabilities, while a noncompensable (zero percent) rating was assigned for the hemorrhoids, all of which were effective from August 25, 2005. The Veteran appealed, contending that higher ratings were warranted. He did not disagree with the effective date assigned for the establishment of service connection. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in April 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. This case was previously before the Board in February 2010 and October 2011. In February 2010, the Board remanded this case for further development to include obtaining outstanding treatment records, and according the Veteran new examinations of the service-connected disabilities that are the subject of this appeal. Additional records were obtained, and new VA medical examinations were accorded to the Veteran in May and June 2010. However, in October 2011 the Board determined that the 2010 VA examinations were not adequate for resolution of the Veteran's knee and hemorrhoid claims. Consequently, the Board remanded the case for new examinations which were accomplished in December 2011, and which the Board finds are adequate for resolution of these claims. All other development directed by the Board's prior remands appears to have been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been completed. 2. Neither of the Veteran's service-connected knee disorders is manifested by ankylosis; recurrent lateral instability and/or subluxation; flexion limited to 60 degrees or less; extension limited to 5 degrees or more; nor malunion of the tibia or fibula. 3. The Veteran's service-connected right knee disorder is not manifested by dislocation or removal of the semilunar cartilage. 4. The Veteran's service-connected left knee disorder is manifested by a tear of the medial meniscus and complaints of pain; i.e., he has evidence of dislocated cartilage, with frequent episodes of "locking," pain and effusion. 5. The record reflects there is evidence of persistent bleeding of the Veteran's service-connected hemorrhoids with secondary fissures. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's service-connected left knee disorder other than dislocated semilunar cartilage are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5257 and 5259 to 5263 (2012). 2. The criteria for a separate rating of 20 percent for the service-connected left knee disorder based upon dislocated semilunar cartilage are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258 (2012). 3. The criteria for a rating in excess of 10 percent for the Veteran's service-connected right knee disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 to 5263 (2012). 4. The criteria for a compensable rating of 20 percent for the Veteran's service-connected hemorrhoids are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.1, 4.2, 4.10, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes, however, that the Veteran's appeal is from disagreement with the initial ratings assigned for his service-connected disabilities of both knees and hemorrhoids. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Despite the foregoing, the Board does note that VCAA-compliant notification was sent to the Veteran via letters dated in December 2005, March 2006, and June 2008. In pertinent part, these letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, and what information and evidence will be obtained by VA. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding his claims. Various medical records were obtained and considered in conjunction with this appeal. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the April 2009 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indicated there is outstanding evidence documenting symptomatology of his service-connected knee disorders and/or hemorrhoids that is not demonstrated by the evidence already of record. With respect to the aforementioned April 2009 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts 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, the VLJ who conducted the April 2009 hearing accurately noted the appellate issues, and information was obtained concerning the Veteran's contentions and medical treatment history. Although the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claims; i.e., the Veteran, through his testimony, explained why he felt his disabilities are not adequately compensated by the currently assigned ratings. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes that the Veteran was accorded VA medical examinations in December 2005, January 2006, May 2010, June 2010, and December 2011 which included findings as to the symptomatology of the service-connected knee disorders and hemorrhoids. In October 2011, the Board found that the May and June 2010 VA examinations of the Veteran's hemorrhoids and knees (respectively) were inadequate because the May 2010 examiner initially indicated that the Veteran had external hemorrhoids, then diagnosed no external hemorrhoids; and that the June 2010 VA examiner provided inconsistent findings regarding whether the Veteran had instability of the knees. No such deficiencies are demonstrated by the more recent December 2011 VA examinations. The December 2011 examinations are adequate because they were based on a review of the history, physical examinations and as sufficient information was provided so the Board can render informed determinations. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. There has also been substantial compliance with the earlier remands. In February 2010, the RO was asked to contact the Veteran and have him identify any relevant treatment records and provide any necessary authorization forms to allow VA to obtain the records, which was accomplished by the RO in a March 2010 letter; obtain VA treatment records dating from June 2007, which was accomplished in April 2010; and conduct examinations of the knees and hemorrhoids, which was accomplished in May and June of 2010. As mentioned above, the examination reports were inadequate and thus the claims were again remanded. In October 2011, the Board requested that the RO contact the Veteran and request that he identify any additional medical records dating from May 2010 that are relevant to his claims, which was accomplished by way of an October 2011 letter; obtain VA treatment records dating from May 2010, which was accomplished and provide the Veteran with examinations concerning his service-connected disorders of the knees and hemorrhoids. As discussed above, the December 2011 examinations are adequate. The Board notes that it has thoroughly 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 extensive 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Analysis - Knees In evaluating disabilities of the musculoskeletal system, 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. 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. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The criteria for disabilities of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Diagnostic Code 5256 provides for ankylosis of the knee. Under this Code, favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 degrees and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 degrees and 20 degrees. When the knee is fixed in flexion between 20 degrees and 45 degrees, a 50 percent rating is assigned. A 60 percent rating is warranted for extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, when there is cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent is assignable. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. This Code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5262 provides criteria for impairment of the tibia and fibula. With malunion and slight knee or ankle disability, a 10 percent rating is assigned. Moderate knee or ankle disability warrants a 20 percent rating. A 30 percent rating is assigned when there is marked knee or ankle disability. When there is nonunion with loose motion, requiring brace, a 40 percent rating is warranted. 38 C.F.R. § 4.71a. Under Diagnostic Code 5263, when there is genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated), a 10 percent rating is warranted. This Code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. Initially, the Board notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis) and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis or genu recurvatum have not been demonstrated for either knee. Further, the record does not indicate any evidence of dislocation or removal of the semilunar cartilage of the right knee so as to warrant consideration of Diagnostic Codes 5258 or 5259. Regarding the Veteran's range of motion, the Board acknowledges that both knees have been manifested by pain throughout the pendency of this case. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are for consideration in the instant case. As such, efforts were made to determine the effect of pain on the Veteran's knees, to include repetitive testing on VA examinations in an effort to determine the extent of functional impairment during such use. In any event, the question is whether the Veteran's complaints of pain, and other knee symptomatology, results in functional impairment to the extent necessary for ratings in excess of 10 percent. For the reasons detailed below, the Board finds that they do not. Despite the Veteran's complaints of pain, the record does not reflect that either of his knees has flexion limited to 60 degrees or less, nor extension limited to 5 degrees or more. For example, the December 2005 VA general medical examination noted, in part, complaints of bilateral knee pain, but found the Veteran to have normal full range of motion in all joints on evaluation of his musculoskeletal system. The subsequent January 2006 VA examination showed both knees to have range of motion from zero to 120 degrees of flexion. The Veteran denied any additional limitations on range of motion or functional impairments beyond pain on flare-ups. A private medical record of treatment in November 2008 indicated the Veteran had 80 degrees of flexion on the right, 5 degrees of extension and increased varus stress, anterior Draw and McMurray on the right side. The June 2010 VA examination showed both knees to have range of motion from zero to 135 degrees of flexion. No additional functional loss was noted after 3 repetitions. While the Veteran reported weakness, stiffness, buckling, intermittent swelling, and flare-ups with respect to both knees lasting a few minutes up to the rest of the day two to four times a week, he usually did not have functional impairment during flare-ups. During a flare-up, he would try to shake the knees out and massage them. He felt the flare-ups were brought on by sitting. The more recent December 2011 VA examination showed both knees to have range of motion from zero to 120 degrees of flexion, again with no additional loss of motion after 3 repetitions. The Veteran reported flare-ups of pain with running, prolonged sitting and standing. No other evidence is of record which indicates the Veteran has limitation of motion of either knee to the extent necessary for a rating in excess of 10 percent even when taking into account his complaints of pain. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for either knee on the basis of limitation of motion. None of the examinations or other evidence of record shows that the Veteran's left and right knee disabilities approximate the criteria for a compensable evaluation based on limited flexion or extension. However, as the Veteran has painful motion and limited noncompensable motion on flexion, the currently assigned 10 percent evaluation for each knee is warranted. In evaluating the Veteran's service-connected knee disorders, the Board was cognizant of the fact that VA's Office of General Counsel held in VAOPGCPREC 9-2004 that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. However, as detailed above, the Veteran does not show limitation of flexion or extension to the extent necessary so as to warrant even a compensable rating under these Codes. Moreover, the evidence does not show that the Veteran has flare-ups or additional limitations following repetitive use which result in additional limitation of motion such that a higher evaluation is warranted. During the hearing the Veteran testified that he had painful motion, pain after four to five minutes of jogging and biking, and difficulty with stairs. During an examination, the Veteran also reported flare-ups of pain usually without functional impairment. These statements are considered competent, credible and probative. However, the Veteran has not asserted that he has additional limitation of motion, including during a flare-up which would warrant a higher evaluation. Moreover, testing was conducted on examination to determine whether there was any additional functional limitation, including any additional limitation of motion, on repetitive use, and no additional limitation of motion was shown. Therefore the medical evidence and the Veteran's statements support the currently assigned ratings based on noncompensable limitation of motion with pain, however, the preponderance of the evidence is against finding that a higher evaluation is warranted pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board also notes that VA's Office of General Counsel held in VAOPGCPREC 23-97 that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. In this case, however, the record does not reflect that either the Veteran's left or right knee is manifested by recurrent lateral instability and/or subluxation. For example, the December 2005 VA general medical examination only noted the Veteran's complaints of pain; i.e., there was no reference to any instability and/or subluxation of either knee. Although the Veteran reported giving way, with the left knee worse than the right, during the January 2006 VA examination, the examiner found no knee instability. A private medical record dated in September 2008 indicated that there was increased varus stress, anterior draw and McMurray on the right and a knee injury was diagnosed. As noted in the Board's October 2011 remand, the June 2010 VA medical examination noted that in terms of stability that there was abnormal motion on varus and valgus stress at neutral and 30 degrees of flexion, but there was no abnormal motion on anterior and posterior or stress at 30 and 90 degrees of flexion. The Board concluded that it was unclear from the actual wording of the June 2010 VA examination whether the Veteran does have recurrent instability and/or subluxation of the knees, and, if so, the extent thereof. Therefore, the Board found that this examination was inadequate, and remanded for a new examination. The subsequent December 2011 VA examination was conducted by the same examiner as in June 2010. In pertinent part, the examiner stated that the June 2010 VA examination report contained a typographical error. Specifically, that she had reviewed her original handwritten notes from this examination which indicated that the Veteran had no instability, and that the sentence which indicated there was abnormal motion on various and valgus stress at natural and 30 degrees flexion should have read "[t]here was no abnormal motion." Further, on the December 2011 VA examination itself the anterior, posterior, and medial-lateral instability tests were all normal. Moreover, it was stated that there was no evidence or history of recurrent patellar subluxation/dislocation. While the Veteran reports buckling and giving way of the knees, the medical evidence is most probative as to whether either knee exhibits lateral instability. The reason for this is that the VA examiners conducted specific testing to determine whether instability was manifested and determined that the tests were normal. In addition, the MRI results indicated that the ligaments were intact. While the private medical record indicated that there was increased stress on testing on the right, the clinician did not indicate that there was instability of the joint, and upon additional medical testing by VA prior to and thereafter, no instability was found. Accordingly, the Board finds most probative the multiple VA examination reports, including the clarification by the 2011 examiner that no instability was shown either on examination in 2011 or 2010. The Veteran's statements that he experiences buckling, which are considered competent, credible and probative, are outweighed by the VA medical evidence, which specifically tested for instability, and separate evaluations for instability are not warranted. In view of the foregoing, the Board finds that neither of the Veteran's service-connected knee disorders is manifested by recurrent lateral instability and/or subluxation. Therefore, the provisions of Diagnostic Code 5257 are not for consideration in the instant case, to include as a separate rating pursuant to VAOPGCPRECs 23-97 and 9-98. The Board acknowledges that the rating decision codesheets in this case have indicated the Veteran's service-connected knee disorders are evaluated pursuant to Diagnostic Code 5262, which provides for evaluation based upon impairment of the tibia and/or fibula. However, the August 2006 rating decision stated that the assigned 10 percent ratings were based upon mild limitation of motion, crepitus, and pain on motion. In short, there was no mention of any impairment of the tibia and/or fibula. Moreover, there is no indication of malunion of the tibia and/or fibula in this case. For example, the January 2006 VA examination noted that X-rays of the knees were within normal limits. Additionally, X-rays conducted that same month of the tibia and fibula showed no evidence of fracture or dislocation, and overall impression was unremarkable bilateral tibia and fibula. No such impairment was otherwise indicated on MRIs conducted of the knees in April 2006. Thus, Diagnostic Code 5262 is not applicable to this case and the Veteran is more appropriately rated under Diagnostic Code 5260 based on noncompensable limitation of flexion. The Board notes, however, that an April 2006 MRI of the Veteran's left knee revealed a questionable posterior tear involving the posterior horn of the medial meniscus. The Veteran also reported having intermittent swelling during the June 2010 examination and the MRI indicated that there was a small amount of fluid on the joint. Further, the December 2011 VA examiner found that the Veteran had a meniscal tear on the left manifested by frequent episodes of joint pain. The Veteran also reported in a March 2011 statement that he experienced locking on many occasions. In short, there is evidence indicating the Veteran service-connected left knee disorder is manifested by a tear of the medial meniscus and complaints of pain; i.e., he has evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion. Therefore, he is entitled to a separate rating of 20 percent pursuant to the criteria found at Diagnostic Code 5258. Reasonable doubt has been resolved in the Veteran's favor. See 38 C.F.R. §§ 3.102, 4.3, 4.7. However, a separate rating on the same basis for the right knee is not warranted. While the Veteran reported that he experienced locking during the hearing, the preponderance of the medical evidence does not show any deficit with respect to the right knee meniscus. While a May 2006 VA medical record indicted that a MRI "shows R knee Medial meniscal tear," directly above that statement the clinician indicated that the MRI showed a "normal L Knee except ACL ganglion, L Knee has Medial Me[]niscal Tear." Upon reviewing the April 2006 MRI report, it is evident that the clinician erred in stating that there was a right knee meniscal tear, as the right knee MRI report stated "[e]valuation of the medial compartment demonstrates a normal medial meniscus. The cartilage is preserved without evidence of subchondral marrow edema." The impression was "[s]mall ACL ganglion cyst suspected. Otherwise unremarkable." The left knee MRI report however included an impression of "[q]uestionable peripheral tear involving the posterior horn of the medial meniscus." The private medical record indicated that that there was increased varus stress, anterior draw and McMurray on the right. However, a meniscal abnormality was not diagnosed and the VA medical records and examination reports do not show that the Veteran has a right knee meniscal abnormality. McMurray's testing in June 2010 was negative and the December 2011 examination only found a deficit with respect to the left knee meniscus. Moreover, the MRI results were negative for a right knee meniscal abnormality. Accordingly, while the Veteran testified that he experienced locking with respect to both knees, the medical evidence is entitled to greater probative weight as medical assessment was conducted to determine whether he had a right knee meniscal deficit. In particular, multiple VA medical records indicate that a meniscal abnormality is not present. Accordingly, the preponderance of the evidence is against finding that a separate rating is warranted pursuant to Diagnostic Code 5258 for the right knee. Analysis - Hemorrhoids Hemorrhoids are evaluated pursuant to the criteria found at C.F.R. § 4.114, Diagnostic Code 7336. Under this Code, internal or external hemorrhoids warrant a noncompensable rating if symptoms are mild or moderate. A 10 percent rating is warranted if hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent rating is warranted if there is persistent bleeding with secondary anemia or fissures. The Board observes that treatment records dated in September 2005, as well as the December 2005 VA general medical examination, noted the Veteran had been treated for hemorrhoids while on active duty. The September 2005 treatment records also note complaints of pain, burning and itching. Further, these records note that he had external hemorrhoids, perianal erythema, and irritation. However, neither these records nor the December 2005 VA examination contained any findings as to the exact size of the hemorrhoids. Nevertheless, it was noted on the December 2005 VA examination that he was using tropical cream and that his symptoms had been better. As such, it indicates that the hemorrhoids were reducible. A March 2009 private colonoscopy procedure report indicated that the Veteran had medium-sized internal hemorrhoids. Further, the May 2010 VA examination of the rectum and anus noted that there was no thrombosed hemorrhoid. The more recent December 2011 VA examination of the rectum and anus noted that his external hemorrhoids were reducible. Moreover, the examiner described the internal and external hemorrhoids as mild or moderate. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. The Board further notes that the Veteran's own contentions and competent medical evidence of record reflect he experiences frequent recurrences of his hemorrhoids. Granted, the record does not appear to contain any specific findings of large hemorrhoids, and there are findings which specifically state that they are not thrombotic nor irreducible. Nevertheless, he has multiple hemorrhoids that are medium in size and he has persistent bleeding which evidences frequent recurrences and therefore more nearly approximates the criteria for a 10 percent rating. In addition, while not specifically stated, the competent medical findings and the Veteran's own testimony shows that he does have findings analogous to excessive redundant tissue. As such, it does appear that he at least satisfies the criteria for a 10 percent rating under Diagnostic Code 7336. Even more significant, in the Board's opinion, is that the evidence consistently reflects the Veteran experiences persistent bleeding of his hemorrhoids. All of the aforementioned VA examinations noted bleeding, and the Veteran testified to such at his April 2009 hearing. Granted, there does not appear to be evidence of secondary anemia. For example, the May 2010 VA examiner did not appreciate any signs of anemia, nor was there evidence of such noted on the more recent December 2011 VA examination. Nevertheless, treatment records dated in September 2005 noted a history of anal fissure, and it was stated that findings were consistent with hemorrhoids and anal fissure. The May 2010 VA examination noted that the Veteran reported having had fissures in the past. The Board acknowledges that the May 2010 VA examiner found no fissures on physical examination. Similarly, there was also no indication of any fissures on the more recent December 2011 VA examination either. Nevertheless, the Board cannot ignore the fact that the Veteran was noted as having anal fissures at least during the pendency of this case, and there is no dispute he has persistent bleeding due to his hemorrhoids. Moreover, in a March 2011 statement he reported that "wiping is like rubbing an open wound with sand paper soaked in rubbing alcohol," and that he experiences this pain five to fifteen times a day. During the hearing he testified that he experienced burning after a bowel movement and he felt there was a "cut there" "'cause it really burns." BVA hearing transcript, p. 13. The Veteran's testimony and statement are found to be credible, competent and probative and tends to show that he has continuing problems with a fissure. The Board also reiterates that the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and that where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. In view of the foregoing, the Board finds that the Veteran's service-connected hemorrhoids more nearly approximates the criteria for a compensable rating of 20 percent under Diagnostic Code 7336 than not. Thus, he is entitled a 20 percent rating in this case. Inasmuch as Diagnostic Code 7336 does not provide for a rating in excess of 20 percent for hemorrhoids, the Board finds that the Veteran is entitled to a compensable rating of no more than 20 percent for his service-connected hemorrhoids. Other Considerations In evaluating the Veteran's service-connected knee disorders and hemorrhoids, the Board took careful consideration of "staged" rating(s) pursuant to Fenderson, supra. However, a thorough review of the record does not indicate there were any distinctive period(s) where any of these disabilities met or nearly approximated the criteria for ratings in excess of those currently in effect. Thus, no "staged" rating(s) is warranted for any of these disabilities. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with 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). The Board finds, however, that the symptomatology of the Veteran's service-connected knee disorders and hemorrhoids are adequately reflected by the current schedular criteria. The knee disorders are manifested by pain and limitation of motion and the left knee disorder is also manifested by a meniscal tear with frequent episodes of locking, pain and effusion, while the hemorrhoids are manifested by frequent recurrences with persistent bleeding and evidence of fissures. As detailed above, such symptoms are considered by the applicable schedular criteria. In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular schedular standards. Although he has had problems at work due to his service-connected disabilities, such impairment is contemplated by the current schedular rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (Noting that the disability rating itself is recognition that industrial capabilities are impaired). As such, referral for consideration for an extraschedular evaluation is not warranted here. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008) Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the issue of TDIU is not reasonably raised by the record. Neither the documentation of record nor the Veteran have asserted that he is unemployable due to his service-connected disabilities. Therefore, no further discussion of a TDIU is warranted in this case. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 10 percent for service-connected left knee disorder is denied. An initial rating in excess of 10 percent for service-connected right knee disorder is denied. A separate rating of 20 percent for the service-connected right knee disorder based upon dislocated semilunar cartilage is granted, subject to the laws and regulation governing the payment of monetary benefits. An initial compensable rating of 20 percent for service-connected hemorrhoids is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs