Citation Nr: 1303398 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-37 992A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea, claimed as breathing problems as a result of asbestos exposure. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected left and right patellofemoral syndrome. 3. Entitlement to a rating in excess of 10 percent for left patellofemoral syndrome. 4. Entitlement to a rating in excess of 10 percent for right patellofemoral syndrome. 5. Entitlement to service connection for irritable bowel syndrome. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active military duty from June 1985 to June 1989 and from July 1989 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 and July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in November 2009; a transcript of that hearing is associated with the claims file. In January 2010, the Board remanded the appeal for further development and the case now returns for further appellate review. The Board notes that additional evidence consisting of medical reports and a lay statement were received subsequent to the issuance of the March 2012 supplemental statement of the case and the Veteran has not waived agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2012). However, as such are not pertinent to his bilateral knees, the Board finds no prejudice to the Veteran in proceeding with a decision on such issues at this time. Relevant to the other claims on appeal, the AOJ will have an opportunity to review such evidence in the readjudication of his claims on remand. The Board notes that the Veteran was previously represented by a Veterans Services Organization; however, while the appeal was in remand status, the Veteran designated a private attorney as his representative in October 2011, but dismissed the attorney in October 2012 prior to the appeal being returned to the Board. As these actions were taken at the Veteran's, not the representatives' initiative, the provisions of 38 C.F.R. § 20.608 (2012) do not apply. Therefore, the Veteran is currently unrepresented in this matter. In July 2012, the Veteran filed a claim of entitlement to service connection for pseudofolliculitis barbae. The Board notes that it appears that the AOJ has started developing it, but has not yet adjudicated it. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for continued appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for sleep apnea, a back disorder, and irritable bowel syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, left patellofemoral syndrome results in painful motion with functional loss equal to flexion of the left knee to no worse than 110 degrees and extension to no worse than zero degrees, without instability or subluxation, ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, or genu recurvatum. 2. For the entire appeal period, right patellofemoral syndrome results in painful motion with functional loss equal to flexion of the right knee to no worse than 100 degrees and extension to no worse than zero degrees, without instability or subluxation, ankylosis, cartilage dislocation or removal, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating in excess of 10 percent for left patellofemoral syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5003 (2012). 2. For the entire appeal period, the criteria for a rating in excess of 10 percent for right patellofemoral syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257-5003, 5260-5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2007 letter, sent prior to the initial unfavorable decision issued in June 2007, advised the Veteran of the evidence and information necessary to substantiate his increased rating claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records relevant to the claims decided herein that have not been requested or obtained. The Veteran was afforded VA knee examinations in June 2007 and October 2010. While the Veteran has alleged varying and non-specific complaints regarding such examinations, the Board finds that both examinations are adequate in order to evaluate his service-connected bilateral knee disabilities as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claims and no further examination is necessary. In January 2010, the Board remanded the case for additional development. As discussed in the preceding paragraphs, the Veteran was afforded a VA examination in October 2010 so as to determine the current severity of his bilateral knee disabilities in accordance with the January 2010 remand directives. Therefore, the Board finds that the AOJ has substantially complied with the January 2010 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Additionally, in November 2009, the Veteran was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (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 November 2009 hearing, the undersigned noted the issues on appeal. Also, information was solicited regarding the Veteran's bilateral knee symptomatology as well as the functional impact such disability has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. Increased Ratings The Veteran served as a U.S. Navy operations specialist with service on several destroyers. He sustained injuries to his right knee in service and received a medical discharge. The RO granted service connection and a 10 percent rating for the right and left knees in September 1994 and November 1995, respectively. The Veteran contends that his bilateral knee disabilities are more severe than are contemplated by the current ratings. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a , Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a , Diagnostic Code 5003. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71 , Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a , Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a , Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a , Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a , Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). In a March 2007 claim for increased ratings for the knees, the Veteran noted that he experienced increased pain, popping, and clicking on motion. He reported difficulty standing and walking for extended times and distances and used medication for pain. In a December 2007 substantive appeal, the Veteran reported that he worked as an office and laboratory administrator that required long periods of standing and that cause his subsequent walking to be unbalanced with a need to hold to a wall for support. VA outpatient treatment records obtained dated since August 2006 show ongoing treatment for bilateral knee arthritis and knee pain. In June 2007, a VA examiner noted the Veteran's reports of worsening knee pain aggravated by stair climbing, prolonged walking, and weight bearing. The Veteran reported occasional "buckling" of the right knee and the occasional use of a knee brace. He denied episodes of locking. The Veteran reported that he had to take frequent breaks as an office manager and could not lift greater than 20 pounds, stand longer than eight minutes, sit longer than 25 minutes, or walk more than one-half mile. The Veteran also had difficulty getting in and out of vehicles and experienced a sleep disturbance from pain. He reported weekly flare-ups after strenuous activity but was not incapacitated. On examination, the PA noted medial tenderness to palpation but no clinical instability, grinding, effusion, or crepitation. Range of motion was zero to 115 degrees flexion with pain at 105 degrees on the right and zero to 125 degrees without pain on the left. There was no additional loss of function due to pain, weakness, fatigue, lack of coordination, or lack of endurance on repetition. The Board will consider the Veteran's post-examination report that the onset of pain on motion occurred at a lower position of flexion. A March 2008 magnetic resonance imaging showed moderate degenerative loss of cartilage in the medial and patellofemoral compartments of both knees. In August 2008 and October 2008, the Veteran reported worsening knee symptoms including that he was unable to flex his knees more than 25 degrees or extend to less than 10 degrees. He also reported that several times per week he became incapacitated such that he could not rise from bed or walk to a bathroom because of his knees. In the November 2009 Board hearing, the Veteran stated that the continued to use medication daily for pain and that his gait had become abnormal. He had difficulty with walking more than 20 to 40 feet, prolonged standing, bending, or climbing on a desk as was required by his occupation. In September 2010, the Veteran submitted records of new privately obtained magnetic resonance images (MRIs) of the knees. The studies showed intact ligaments and menisci with no tears. In the left knee, there was some soft tissue swelling anterior to the patellar ligament and edema in the fat posterior of the proximal patellar ligament. The studies of the right knee were the same but with some tilting of the patella and some thinning of the cartilage with chondromalacia. At an October 2010 VA examination, a VA physician noted a review of the claims file and accurately summarized the history of injury and treatment. The physician additionally noted that the Veteran had experienced a fall and reinjured his knees in July 2009. The physician noted that the Veteran had received an intra-articular injection on one occasion to the right knee. The Veteran reported bilateral instability, giving way, weakness, pain, increased incoordination, swelling, tenderness, flare-ups and locking episodes several times per week. The symptoms were precipitated by prolonged standing, walking more than 100 yards, sitting for more than 45 minutes, and climbing stairs. The Veteran reported wearing knee braces, using mediation daily, and expending 80 hours of sick leave per year because of knee flare-ups. On examination, the physician noted an antalgic gait and crepitation of both knees. There was no clinically observed instability, grinding, or meniscus or patellar abnormalities. Range of motion of the left knee was from zero to 110 degrees and range of motion of the right was from zero to 100 degrees. Both ranges of motion were noted to be without pain and with no additional loss of function or limitations on repetition. The physician concluded that the bilateral knee disabilities would prevent sports and exercise, severely restrict chores, shopping, recreation, driving and traveling, and moderately impact the activities of daily living. Left Patellofemoral Syndrome The Veteran's left patellofemoral syndrome is currently evaluated pursuant to Diagnostic Code 5260-5003. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that limitation of flexion under Diagnostic Code 5260 is the service-connected disorder and degenerative arthritis under Diagnostic Code 5003 is a residual condition. Pursuant to Diagnostic Code 5003, arthritis is to be rated on limitation of motion. As indicated previously, Diagnostic Code 5260 pertains to limitation of flexion and Diagnostic Code 5261 pertains to limitation of extension. In the instant case, the evidence demonstrates that the Veteran's left knee range of motion was no worse than zero to 110 degrees at any point during the appeal period. Specifically, range of motion of the Veteran's left knee was from zero to 125 degrees without pain in June 2007. There was no additional loss of function due to pain, weakness, fatigue, lack of coordination, or lack of endurance on repetition. Moreover, range of motion of the left knee was from zero to 110 degrees without pain and no additional loss of function or limitations on repetition in October 2010. While the Veteran alleged limitation of motion of 10 to 25 degrees in 2008, the Board finds that such is not credible as it is inconsistent with the remainder of the evidence, to include the clinical evidence dated before and after such allegation, and his self-report of his ability to walk up to 100 yards with no use of canes or crutches. Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Therefore, the Board finds that the Veteran's limitation of motion of the left knee is manifested by extension to zero degrees and flexion to 110 degrees, even after repetitive motion and in consideration of symptoms of pain, weakness, fatigue, lack of coordination, or lack of endurance. In this regard, the Board has specifically considered the Court's holdings in DeLuca, supra, and Mitchell, supra; however, the evidence fails to show that such symptoms result in functional loss of extension greater than 10 degrees or flexion greater than 45 degrees. As such, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 or 5261 for his left knee disability. The Board has considered, under VAOPGCPREC 9-04, whether the Veteran is entitled to separate ratings for limitation of flexion and extension. However, as he does not meet the minimal compensable rating under either Diagnostic Code 5260 or 5261, separate ratings are not for application. Rather, the Veteran's single 10 percent rating for his left patellofemoral syndrome contemplates his arthritis that results in painful and limited, albeit noncompensable, motion. The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257; however, the Board finds no objective evidence of subluxation or instability in the left knee. In this regard, the Board acknowledges the Veteran's complaints that he had instability, giving way, and locking episodes several times a week and wore a knee brace; however, as a layperson, he is not competent to diagnose internal instability or subluxation. In this regard, while he is competent to report that his knee feels unstable, gives way, or locks, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, medical professionals have found no instability of the left knee. Specifically, the June 2007 and October 2010 VA examiner determined that there was no clinical instability of the Veteran's left knee. Moreover, a September 2010 MRI showed intact ligaments. Based on the foregoing, the objective medical evidence shows that the Veteran's left knee is stable without instability or subluxation. Accordingly, a separate rating for instability or subluxation of the left knee under Diagnostic Code 5257 is not warranted in this case. Right Patellofemoral Syndrome The Veteran's right patellofemoral syndrome is currently evaluated pursuant to Diagnostic Code 5257-5003. The hyphenated diagnostic code in this case indicates that recurrent subluxation or lateral instability under Diagnostic Code 5257 is the service-connected disorder and degenerative arthritis under Diagnostic Code 5003 is a residual condition. 38 C.F.R. § 4.27. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In the instant case, the Board notes that the Veteran was originally granted service connection for right patellofemoral syndrome and, since such time, has been evaluated under Diagnostic Code 5257-5003; however, for the below reasons, the Board finds that the Veteran's right patellofemoral syndrome is more appropriately rated under Diagnostic Code 5260-5003. Specifically, Diagnostic Code 5257 contemplates recurrent subluxation or lateral instability; however, in the instant case, the probative evidence of record fails to demonstrate the presence of such symptoms. In this regard, while the Veteran has complained of occasional "buckling" of the right knee, instability, giving way, and locking episodes, and necessitated the use of a knee brace, he, as a layperson is not competent to diagnose internal instability or subluxation. In this regard, while he is competent to report that his knee feels unstable, gives way, or locks, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. See Woehlaert, supra. Rather, medical professionals have found no instability of the right knee. Specifically, the June 2007 and October 2010 VA examiner determined that there was no clinical instability of the Veteran's right knee. Moreover, a September 2010 MRI showed intact ligaments. Based on the foregoing, the objective medical evidence shows that the Veteran's right knee is stable without instability or subluxation. Therefore, the use of Diagnostic Code 5257 is not appropriate. Rather, as will be discusssed in further detail below, the Veteran's right knee disability is manifested by painful and limited, albeit noncompensable, motion (specifically, flexion) and, therefore, such disability is more appropriately evaluated under Diagnostic Code 5260, pertinent to the evaluation of limitation of flexion. In changing the Diagnostic Code under which the Veteran's right knee disability is evaluated, the Board notes that, in Murray v. Shinseki, 24 Vet.App. 420 (2011), the Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). Additionally, the Court held that change of Diagnostic Codes under which Veteran's disability was rated was error where the change effectively reduced to zero disability rating which had been in effect for more than 20 years, and thus protected by regulation. Id. In the instant case, the Veteran's 10 percent rating under Diagnostic Code 5257-5003 has been in effective since July 21, 1994, i.e., less than 20 years, and therefore, is not protected. As such, Murray is inapplicable in the instant case. The Board is also cognizant of the Federal Circuit's holding in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), which pertains to a claim involving muscle groups, the Federal Circuit held that a change in determination of situs of Veteran's disability from one muscle group to another, for purposes of determining the correct diagnostic code, did not sever service connection of the disability, as such would violate the statute protecting service connection of disabilities. In this regard, the Federal Circuit noted that specific situs of disability was identified for the first time, disability was not tied to a particular muscle group but to Veteran's inability to perform certain acts, and determination that his wound was incurred in connection with military service was not changed. See also 38 U.S.C.A. §§ 101(16), 1159; VAOPGCPREC 50-91 (Mar. 29, 1991) (holding that 38 U.S.C. § 359 (the previous codification of 38 U.S.C. § 1159) does "not prohibit the redesignation of an existing service connected rating to accurately reflect the actual anatomical location of the injury or disease resulting in the Veteran's disability, provided the redesignation does not result in the severance of service connection for the disability in question"). Therefore, as the Board's change in Diagnostic Code pertaining to the evlauation of the Veteran's service-connected right knee disability does not sever service connection and, rather, more appropriately captures the nature of his disability, the Board finds that is proper. Furthermore, the characterization of his right knee disability remains right patellofemoral syndrome. Pursuant to Diagnostic Code 5003, arthritis is to be rated on limitation of motion. As indicated previously, Diagnostic Code 5260 pertains to limitation of flexion and Diagnostic Code 5261 pertains to limitation of extension. In the instant case, the evidence demonstrates that the Veteran's right knee range of motion was no worse than zero to 105 degrees, to include in contemplation of pain, at any point during the appeal period. Specifically, range of motion of the Veteran's right knee was from zero to 115 degrees with pain at 105 degrees in June 2007. There was no additional loss of function due to pain, weakness, fatigue, lack of coordination, or lack of endurance on repetition. Moreover, range of motion of the right knee was from zero to 100 degrees without pain and no additional loss of function or limitations on repetition in October 2010. While the Veteran alleged limitation of motion of 10 to 25 degrees in 2008, the Board finds that such is not credible as it is inconsistent with the remainder of the evidence, to include the clinical evidence dated before and after such allegation, and his self-report of his ability to walk up to 100 yards with no use of canes or crutches. Caluza, supra. Therefore, the Board finds that the Veteran's limitation of motion of the right knee is manifested by extension to zero degrees and flexion to 100 degrees, even after repetitive motion and in consideration of symptoms of pain, weakness, fatigue, lack of coordination, or lack of endurance. In this regard, the Board has specifically considered the Court's holdings in DeLuca, supra, and Mitchell, supra; however, the evidence fails to show that such symptoms result in functional loss of extension greater than 10 degrees or flexion greater than 45 degrees. As such, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 or 5261 for his right knee disability. The Board has considered, under VAOPGCPREC 9-04, whether the Veteran is entitled to separate ratings for limitation of flexion and extension. However, as he does not meet the minimal compensable rating under either Diagnostic Code 5260 or 5261, separate ratings are not for application. Rather, the Veteran's single 10 percent rating for his right patellofemoral syndrome contemplates his arthritis that results in painful and limited, albeit noncompensable, motion. The Board has also considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257; however, as previously discussed, there is no competent, i.e., clinical, evidence of instability or subluxation of the left knee. Rather, the objective medical evidence shows that the Veteran's left knee is stable without instability or subluxation. Accordingly, a separate rating for instability or subluxation of the left knee under Diagnostic Code 5257 is not warranted in this case. Other Considerations The Board has also considered whether the Veteran is entitled to higher or separate ratings under Diagnostic Code 5258, pertaining to the dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, or Diagnostic Code 5259, pertaining to symptomatic removal of semilunar cartilage. "Semilunar cartilage" is defined as either of the crescent-shaped wedges of fibrocartilage found in the knee. The meniscus is a crescent-shaped wedge of fibrocartilage. See Dorland's Illustrated Medical Dictionary 1127 (30th ed. 2003). In the instant case, the evidence fails to demonstrate that the Veteran's left or right meniscus has been dislocated or removed. In this regard, the October 2010 VA examiner specifically found no abnormalities of the meniscus. Moreover, the September 2010 MRI showed intact menisci with no tears. Therefore, Diagnostic Codes 5258 and 5259 are not for consideration and the Veteran is not entitled to higher or separate ratings for his bilateral knee disabilities under either Diagnostic Code. The Board has also considered whether the Veteran is entitled to higher ratings under Diagnostic Code 5003; however, as there is no X-ray evidence of involvement of two or more major joints, a 20 percent rating is not warranted under Diagnostic Code 5003 for either of the Veteran's bilateral knee disabilities. Additionally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262, or 5263, respectively. In reaching this decision, the Board has specifically considered the Veteran's contentions with respect to the nature of his service-connected bilateral knee disabilities and notes that his lay testimony is competent to describe certain symptoms associated with such disabilities, to include flare-ups, crepitation, pain, swelling, popping, clicking, weakness, and tenderness, and sensations of locking, giving way, and instability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and the Board finds that, even in contemplation of such symptoms, his bilateral knee disabilities do not result in functional loss that more nearly approximates ratings in excess of 10 percent. In this regard, despite such reports, his flexion and extension are not limited to a compensable degree. Additionally, as discussed previously, the competent evidence fails to demonstrate instability or subluxation. Therefore, the Board finds that such symptoms are contemplated by the 10 percent disability ratings assigned for each knee. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the bilateral knee pathology. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral knee disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral knee disabilities with the established criteria found in the rating schedule. The Board finds that the Veteran's bilateral knee symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran has been assigned a 10 percent rating for each knee based on his symptoms that result in functional loss of painful and limited motion. There are no additional symptoms of either his left or right knee that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's bilateral knee disabilities may interfere with his employment in that he has had difficulty perform all aspects of his position and has required to take sick leave due to knee flare-ups, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran has not raised the issue, and the record reflects that he continues to work full time as an administrator at a VA Medical Center. Therefore, the Board finds that the issue of entitlement to a TDIU does not warrant consideration. For the foregoing reasons, the Board finds that ratings in excess of 10 percent for left knee and right knee patellofemoral syndrome is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine is not applicable in the instant case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for left patellofemoral syndrome is denied. A rating in excess of 10 percent for right patellofemoral syndrome is denied. REMAND In December 2012, after the appeal was returned to the Board, the Veteran submitted a new written statement from a former shipmate noted that he observed the Veteran's symptoms regarding sleep difficulties when they served together on a destroyer. In this regard, R.D. indicated that the Veteran would wake up choking or experiencing breathing problems, snored, and experienced forgetfulness and difficulty concentrating due to sleep deprivation. Any pertinent evidence accepted by the Board must be referred to the AOJ for review unless this procedural right is waived by the Veteran in writing or on the record at a hearing or unless the benefit to which it relates may be fully allowed. 38 C.F.R. § 20.1304(c) (2012). The Board concludes that this evidence is new and pertinent as it addresses the onset of symptoms of sleep apnea in service. The Veteran did not waive consideration of the evidence by the AOJ. Therefore, a remand is necessary in order to allow the AOJ to consider it in the first instance. The Board notes that the Veteran was afforded a VA examination in October 2010 in order to determine the current nature and etiology of his sleep apnea. At such time, the examiner rendered an opinion that such disorder was not caused by or a result of his military service. In this regard, the examiner indicated that the respiratory conditions that the Veteran had in service were transient and self-limiting conditions that would not cause sleep apnea. In light of R.D.'s statement indicating that the Veteran experienced symptoms of sleep apnea during service, the Board finds that it is necessary to obtain an addendum opinion from the October 2010 VA examiner regarding the etiology of sleep apnea that takes such statement into account. Moreover, 2011 emails between the Veteran and the October 2010 VA examiner indicate that the examiner would like to re-review the claims file in order to address the Veteran's inquiry regarding asbestos exposure. As such, in offering an addendum opinion, the examiner may clarify his earlier statements pertaining to such exposure, if he so wishes. In its January 2011 remand, the Board directed the AOJ to obtain a VA examination to determine the nature and etiology of the Veteran's back disorder. The Board requested that the examiner provide an opinion whether any currently diagnosed back disorder was caused by any aspect of service or was caused or aggravated by the Veteran's service-connected bilateral knee disorders. In an October 2010 examination report, the examining physician provided an opinion on the cause of the disorder but did not address the possibility of aggravation. Therefore, an addendum opinion should be obtained on remand. Finally, the Board notes that, in July 2011, the AOJ denied service connection for irritable bowel syndrome. The Veteran expressed timely disagreement in October 2011. When there has been an initial AOJ adjudication of a claim and a timely notice of disagreement, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with a statement of the case regarding the issue of entitlement to service connection for irritable bowel syndrome. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Return the Veteran's claims file to the October 2010 VA examiner for addendum opinions regarding the Veteran's sleep apnea and back disorder. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the October 2010 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Relevant to the Veteran's sleep apnea, after reviewing the record, to include the December 2012 statement from R.D., the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea is related to his military service. In this regard, R.D. indicated that the Veteran would wake up choking or experiencing breathing problems, snored, and experienced forgetfulness and difficulty concentrating due to sleep deprivation. In offering an addendum opinion, the examiner may clarify his earlier statements pertaining to the Veteran's alleged asbestos exposure, if he so wishes. Relevant to the Veteran's back disorder, after reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's back disorder was aggravated by his service-connected bilateral knee disabilities. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the March 2012 supplemental statement of the case. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs