Citation Nr: 1305149 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 08-29 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthma and obstructive sleep apnea. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to a rating in excess of 10 percent, effective prior to February 19, 2008, and a rating in excess of 30 percent, effective from February 19, 2008, for bilateral pes planus. 4. Entitlement to an increased rating for recurrent left tibia fractures, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from October 1997 to October 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In August 20010, the Board denied the Veteran's claims for various disorders, to include those as listed on the title page of this decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2011 Order, the Court granted the parties' Joint Motion For Remand. The Board's decision, as to the issues currently on appeal, was vacated and the Veteran's claims were remanded to the Board. The Order called for the claims to be remanded so that an attempt could be made to obtain additional records from the Social Security Administration (SSA) and because adequate reasons and bases were not provided as to those claims regarding entitlement to service connection for asthma and diabetes mellitus. In January 2012, the Board remanded the case for the evidentiary development denoted in the Joint Motion for Remand. The requested development has been satisfactorily accomplished with regard to the issues addressed in this decision. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement a rating in excess of 10 percent, effective prior to February 19, 2008, and a rating in excess of 30 percent, effective from February 19, 2008, for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The most probative evidence shows that the Veteran does not have a respiratory disorder, including asthma and chronic obstructive sleep apnea, that had its onset in service or is otherwise related to his period of active duty. 2. The most probative evidence shows that the Veteran's diabetes mellitus did not have its onset in service; was not manifest to a compensable degree within one year of discharge; and the disease is not otherwise related to his period of active duty, including the service-connected lipomas. 3. The Veteran's recurrent left tibia fractures are manifested by chronic pain, tenderness, swelling, and stiffness; however, range of motion of the left knee was to 0 degrees on extension and limited at most to 98 degrees on flexion, and there was no finding of instability or subluxation of the left knee. CONCLUSIONS OF LAW 1. A respiratory disorder, to include asthma and chronic obstructive sleep apnea, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for a rating in excess of 10 percent for recurrent left tibia fractures have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In July 2007, August 2007, May 2008, October 2008 and February 2012 letters, prior to and subsequent to the rating decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate claims for service connection and increased ratings, as well as what information and evidence must be submitted by the Veteran, and what information and evidence will be obtained by VA. He was also advised of how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notices provided is harmless because the claims were readjudicated post remand. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). The Board also observes the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, this case was recently overturned in part by the United States Court of Appeals for the Federal Circuit. See Vazquez-Flores v. Shinseki, 580 F.3d. 1270 (2009). Hence, it need not be further discussed in this decision. Consequently, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any deficiencies that require corrective action, including in the Joint Motion for Remand. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, private and VA treatment reports, Social Security Administration records and decisions, lay statements, the Veteran's statements and hearing testimony, and VA examination reports, including those generated in response to the Board's recent remand. The Board notes that the relevant VA examination reports reflect that the examiners reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Specifically, the joint examinations included studies necessary to rate the Veteran's conditions relevant to the rating criteria for those disabilities. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that there has been substantial compliance to the development directives requested by the Board in conjunction with the claims and VA's duty to assist has been met. Stegall, supra. Analysis Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (holding that when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim); Voerth v. West, 13 Vet. App. 117, 120 (1999) (holding that in Savage the Court had clearly held that 38 C.F.R. § 3.303 does not relieve the claimant of his burden of providing a medical nexus). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as diabetes mellitus, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2010). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory Disability, to Include Asthma and Obstructive Sleep Apnea In January 2010, the Veteran testified that his breathing problems started at Fort Drum in approximately 1999, when he reportedly was gasping for air and wheezing. He indicated he saw doctors in service, but that they did not make any specific diagnosis. He claimed that throughout service and still to this day, he woke up at night gasping. He testified he saw a VA physician for his breathing problems, but indicated that a specific diagnosis had not been made, even though he continued to have problems with shortness of breath, gasping for air at night, and wheezing. He reported he had asked his doctors if he had asthma, and was told he did not, and he had not been given any medication to treat his symptoms. Service treatment records show that the Veteran reported sleeping problems due to panic attacks, but the reports are negative for any complaints of or a finding of asthma or chronic obstructive sleep apnea. VA examination in August 2004 showed that lungs were clear to auscultation and percussion. A March 2007 VA treatment record showed that the Veteran was seen for unrelated complaints, and on a preliminary review of systems he denied any difficulty breathing and had no wheezing. The Veteran submitted two statements from fellow serviceman (received in September 2007) attesting to the fact that the Veteran suffered from asthma attacks during service. Upon VA respiratory examination in February 2012, the examiner concluded that the Veteran did not currently have asthma, which made it unlikely that he had the condition during his military service. Pulmonary function tests were within normal limits. Additionally, the lay statements pertaining to gasping and wheezing were more likely related to his smoking habit. He was diagnosed with chronic obstructive sleep apnea. In the absence of a current diagnosis of asthma, there is no disability for which service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists). The Board has considered the contentions of both the Veteran and his representative, and acknowledges that the Veteran complained of breathing problems in service. However, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110; Brammer, supra. In other words, the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau, supra. Here, the February 2012 VA examination report clearly concluded that the Veteran did not have asthma, the Veteran is not competent to render such diagnosis himself, and lay evidence of the disease is not sufficient to establish its presence. See Espiritu, Jandreau, supra. Further, the Board notes that, while the evidence of record strongly suggests his in-service gasping and wheezing complaints are related to tobacco usage, the Veteran filed his claim after June 9, 1998 and VA is legally precluded from granting service connection on this basis; therefore, there is no need to address this aspect of the Veteran's claim. See 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300(a) (2012). As noted above, upon VA examination in February 2012, the Veteran was diagnosed with chronic obstructive sleep apnea. The clinician reviewed the claims files, including the lay statements and testimony pertaining to gasping and wheezing outlined above (which were attributed to smoking), and concluded that the obstructive sleep apnea most likely had its onset post-service as a result of the Veteran's obesity. The Board has accorded this opinion significant probative value because it was based on a full review of the record and a thorough clinical evaluation. See Winsett, Bloom, supra. Moreover, the Board observes that there are no medical records documenting complaints of obstructive sleep apnea to satisfy the continuity of symptomatology requirement of § 3.303(b) until more than four years after discharge. Lay statements pertaining to snoring, gasping, wheezing, etc. are within the Veteran's (and other lay persons') competence; however, a diagnosis of sleep apnea or another respiratory disorder is not. Notably, the Board observes that the symptoms reported by the Veteran and others have been attributed to the Veteran's smoking and he has been advised to stop smoking. Since attributing specific symptoms to a specific respiratory diagnosis is beyond the scope of the Veteran's and other lay person's competence, the Board has accorded the Veteran's and other lay statements and assertions little probative value. Additionally, the Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Consequently, in light of the gap in time between service and the onset of his current problems, as well as the Board's finding that the most probative evidence does not support his claim, the Board concludes that the claim may not be granted. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes Mellitus The Veteran asserts that service connection is warranted for diabetes mellitus. He has testified that he had various "lumps" on his body in service, which he was told were his lymph nodes, but that in 2007 a VA physician told him that his "lumps" were a sign of diabetes. He has established service connection for lipomas, which are currently rated noncompensable. His service treatment records do not show that he was treated for or diagnosed with diabetes mellitus. He was discharged from active duty in October 2004, and the medical evidence shows that the disease was initially diagnosed in 2007. Specifically, the medical records show that in March 2007, the Veteran reported he wanted to discuss some changes that had been occurring with him, including weight loss of 40 pounds in the past several months, increase in thirst and frequency of urinating, and tingling in the fingers of both hands. The next day he was seen and the assessment was rule out diabetes mellitus. After laboratory tests were reviewed, a diagnosis of diabetes mellitus, type 2, was made and he was started on insulin in March 2007. In July 2007, the Veteran's wife submitted a statement describing the impact of his diabetes on his life. Subsequent VA treatment records show the Veteran continues ongoing treatment for his diabetes mellitus. In a September 2007 statement by a friend of the Veteran, it was reported that Veteran had also had vision problems since service. It is noted that VA records show complaints of blurred vision associated with the Veteran's diabetes (see e.g., VA records dated in June 2007). Upon VA examination in February 2012, the clinician reviewed the Veteran's file and concluded that it was less likely that the Veteran's currently manifest diabetes mellitus had its onset in military service. The service treatment records, including laboratory findings, did not demonstrate any signs or symptoms of the disease. He noted that a diagnosis must be shown by specific laboratory evidence which was lacking in the service records. Additionally, it was less likely that the lipomas the Veteran experienced in service were an initial manifestation of the disease because lipomas are not infective lesions and are not caused or aggravated by diabetes mellitus. The Board has accorded this opinion significant probative value because it was based on a full review of the file, a discussion of the Veteran's assertions, and a thorough clinical evaluation. See Winsett, Bloom, supra. Based on the evidence of record, the Board finds that service connection for diabetes mellitus is not warranted on a direct basis pursuant to 38 C.F.R. § 3.303(a); on a presumptive basis as a chronic disease pursuant to 38 C.F.R. § 3.309(a) ; on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b); or on a secondary basis pursuant to 38 C.F.R. § 3.310 because the most probative evidence shows that the disease was not manifest in service or to a compensable degree within one year of the Veteran's discharge from service; is not causally related to or aggravated by a service-connected disability, including the lipomas; and continuity of symptomatology has not been sufficiently demonstrated. The Veteran was discharged from military service in October 2004 and he was initially diagnosed with the disease more than two years after discharge in 2007. His service treatment records do not document any complaint, consultation, or diagnosis of diabetes mellitus. Moreover, a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Finally, the most probative medical evidence shows that it is less likely that the Veteran's diabetes mellitus is related to his military service, including the service-connected lipomas. The Veteran is competent to provide testimony as to specific symptoms, including pertaining to his lipomas during service or to state what a doctor told him with regard to those lipomas. Additionally, lay persons are competent to testify with regard to noting visual complaints or problems, such as observing a person squinting. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, they are not competent to provide an opinion that the symptoms the veteran experienced during military service were due to a specific medical condition, i.e., diabetes mellitus. Id. Simply stated, the veteran's and other lay opinions regarding the presence or etiology of diabetes mellitus (or symptoms indicative of the disease) in service lack probative value and do not constitute competent medical evidence. See Espiritu, 2 Vet. App. at 492, 494-95. Diabetes mellitus is a complex disorder which requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Hence, the Veteran's personal or other lay statements therein cannot be accepted as competent medical evidence. Additionally, the Board observes that the Veteran has not submitted a written medical statement pertaining to his assertion that a doctor told him that his lipomas were early indicators of diabetes mellitus despite having the opportunity to do so after the Board's recent remand for further evidentiary development. As such, the Board has accorded these statements and assertions little probative value. Consequently, in light of the gap in time between service and the onset of his currently manifest diabetes mellitus, as well as the Board's finding that the most probative evidence does not support his claim, the Board concludes that the claim may not be granted. For the reasons set forth above, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability evaluations are determined by application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (2012). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). Although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning the disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In an October 2007 rating decision, the RO denied a compensable rating for the service-connected recurrent left tibia fractures. The Veteran filed a notice of disagreement with that rating decision, and in the September 2008 statement of the case (SOC), the RO granted a 10 percent rating for recurrent left tibia fractures, effective from August 17, 2007. In assigning the 10 percent rating, the RO noted that the diagnostic criteria for a schedular 10 percent rating had not been met under any of the applicable Diagnostic Codes, including Diagnostic Codes 5260, 5261, and 5262. However, the RO indicated that a higher disability rating may be assigned based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under certain VA regulations, and then assigned a 10 percent rating for left tibial fracture based on functional loss due to pain. Diagnostic Code 5260 provides for a 10 percent rating where there is limitation of knee flexion to 45 degrees. A 20 percent rating is warranted for limitation of knee flexion to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 provides for a 10 percent rating where there is limitation of knee extension to 10 degrees. A 20 percent rating is warranted for limitation of knee extension to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). With regard to range of motion, 38 C.F.R. § 4.71, Plate II, reflects that normal flexion and extension of a knee is from zero degrees of extension to 140 degrees of flexion. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). The pertinent evidence of record includes the report of a VA examination in September 2007, at which time the Veteran reported progressively worse symptoms due to the left tibia fracture in service. He reported pain was present when standing or walking. He denied inflammation. It was noted that the condition did not affect the motion of the joint. He reported flare-ups three to four times per week, lasting for hours, and of moderate severity. He reported he had to sit down and cease what he was doing, that precipitating factors included standing and walking for long periods of time, and was alleviated by rest. He reported he was only able to stand for 15 to 30 minutes, and was unable to walk more than few yards. The left knee had range of motion from 0 degrees on extension to 98 degrees on flexion. Passive flexion was to 110 degrees, but he was unable to flex further secondary to a cramp in the hamstring. For employment, it was noted that the Veteran was employed full time as a babysitter at a boys' ranch. He had this position for less than a year. He had lost three weeks from work during the last 12 month period due to pain in the feet and back. The diagnosis was ossific tibiofibular membrane calcification. The examiner indicated that the Veteran's left tibia fracture had significant effects on his occupational activities due to pain, and that there was a mild effect on his ability to perform chores and shop, and moderate effects on exercise and recreation. Received in September 2007 was a statement from the Veteran's wife in which she described the pain he experiences due to his stress fracture in his tibia. In a statement dated in December 2007, a VA physician indicated that the Veteran was not able to continue PE activities because of previous trauma and injury to his lower extremities. On VA examination in November 2008, the Veteran reported having constant, and progressively worse, left knee pain, and that he occasionally limped when the pain increased, usually in the middle of the day. He complained of sporadic numbness to the area. He reported a poor response to treatment. On musculoskeletal review of systems, it was noted that he had pain, stiffness, limited motion, and swelling in the left knee, but no flare-ups of joint disease. In the left lower extremity he had edema and aching. Objective examination showed tenderness of the medial and lateral knee, and range of motion was from 0 to 140 degrees, with pain at 140 degrees. An x-ray showed prominent calcific density near the interosseous portion of the mid shaft of the left tibia and fibula, with some hypertrophic exuberant bone formation about the cortex of the proximal tibia in the same region. These changes were noted to be present on a prior examination in 2005, and were unchanged and did not have the appearance of residue of fracture. Received from the Veteran in March 2009 was a statement in which he indicated he disagreed with VA's examination findings in November 2008. He claimed that he denied having flare-ups of pain with his stress fracture because there was constant pain that never went away. He claimed that the reason the fracture was not detected on the x-ray was because it could not be, but that it had been detected with past MRIs. He claimed that his left tibia injury had a significant effect on his activities, chores, exercise, sports and recreation, and not a mild effect, as noted by the VA examiner. He claimed he could not play any kinds of sports or exercise or recreation because of this painful injury. In January 2010, the Veteran testified that his left tibia condition limited his mobility and daily function and tasks. He claimed he had to walk with a cane. He reported severe and throbbing pain every day in his left lower leg, and claimed he had to use the cane because he feared losing his balance due to his left leg. He testified that his VA physician indicated that the next step to alleviate the pain would be surgery. He claimed his left tibia disability limited his activities, including the time he could stand, sit, and walk. Records from the Social Security Administration document the Veteran's tibia fracture as one of his disabilities. Medical evidence associated with the decision included duplicate copies of VA treatment records. A review of the relevant VA examination reports and treatment records shows that the Veteran has consistently reported having chronic left knee pain. Examinations have shown pain, tenderness, stiffness, and swelling. With regard to range of motion, in September 2007 he had active left flexion limited to 98 degrees, and passive flexion was to 110 degrees. In November 2008 he has full range of left knee motion, from 0 to 140 degrees. Thus, a review of the record shows no evidence of limitation of left knee motion that would even reach a minimum compensable level under Diagnostic Code 5260 and/or Diagnostic Code 5261. Therefore, these diagnostic codes do not provide a basis for a rating in excess of 10 percent for the service-connected left knee disability. Moreover, due to the actual range of motion demonstrated, separate evaluations for limited flexion and extension of the right knee under Diagnostic Code 5260 and/or Diagnostic Code 5261 are not warranted here, as is permitted by VAOPGCPREC 9-2004. The Board has also considered whether any alternative diagnostic codes would allow for a rating in excess of 10 percent for the service-connected left knee disability. However, ankylosis has not been shown or alleged (Diagnostic Code 5256), he has not been diagnosed with nonunion or malunion of the tibia and fibula (Diagnostic Code 5262), and there has been no finding of dislocated semilunar cartilage, and no episodes of locking or findings of effusions of the knee (Diagnostic Code 5258) to warrant higher ratings under the rating criteria for those specific impairments. With regard to Diagnostic Code 5257, the Board concludes that the competent evidence of record does not support a separate compensable rating for the left knee under this diagnostic code for slight recurrent subluxation or lateral instability. The record reflects that the Veteran's left knee has consistently been found to be stable, and there has been no showing of left knee subluxation or lateral instability. Thus, the medical evidence does not support the assignment of a separate rating under Diagnostic Code 5257. The Board has also considered whether any of the DeLuca factors or 38 C.F.R. § 4.40 or 4.45 have caused additional limitation so as to warrant any higher ratings. Although the most recent VA examination in 2008 showed pain at the endpoint of flexion, the prior VA examination showed active flexion to 110 degrees, with further flexion prevented because of a cramp in the hamstring. The Veteran has reported ongoing constant left knee pain, and the Board finds that the effects of pain reasonably shown to be due to his service-connected left knee disability are already contemplated by the 10 percent rating assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In that regard, as described above, the medical evidence indicates that although the Veteran had some painful motion, the pain did not in effect limit his motion to such a degree that it was analogous to ankylosis (Diagnostic Code 5200), or to a compensable rating under Diagnostic Codes 5260 and 5261. Additionally, the Board notes that the Veteran has consistently reported that his service-connected left tibial disability affects his daily activities and causes him to have to use a cane to walk. Moreover, in 2007, VA's examiner concluded that the Veteran's left tibia fracture had significant effects on his occupational activities due to pain, and that there was a mild effect on is ability to perform chores and shop, and moderate effects on exercise and recreation. On VA examination in 2008, he denied flare-ups, but reported progressively worse left knee pain that limited his activities. There is no indication in the current record, however, that pain, stiffness, or weakness due to disability of the left knee causes functional loss greater than that contemplated by the currently assigned 10 percent rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. The Board notes that without taking into consideration the Veteran's complaints regarding his left knee, the current 10 percent evaluation could not be justified. Thus, the overall evidence fails to show that pain or other symptoms resulted in additional functional limitation such as to enable a finding that the Veteran's left tibial disability picture more nearly approximates a 20 percent rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, supra. In sum, the Board finds that, based on the preponderance of the evidence, the criteria for a 20 percent or higher rating for recurrent left tibia fractures, have not been met at any time during the appeal period. In conclusion, an award of a 20 percent or higher rating for the service-connected recurrent left tibia fractures is not supported by the competent medical and competent and credible lay evidence of record. As the preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra. Extraschedular Consideration Finally, the Board finds that the Veteran's recurrent left tibia fractures claim does not warrant referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In the present case, in considering the rating criteria utilized for evaluating the severity of the Veteran's service-connected recurrent left tibia fractures, the rating criteria considered reasonably describe and contemplate his levels of disability and symptomatology, including any impact on his employability. The record reflects he worked at a juvenile detention center up until May 2008. On VA examination in 2007, it was noted that he was employed full time at the boys' ranch for less than a year and he had lost three weeks from work during the last 12 month period due to pain in the feet and back. In March 2008, he reported that he continued to be a gym teacher and used a cane to ambulate with his antalgic painful gait. The record reflects that the Veteran has indicated that his unemployability is due to his diabetes mellitus, PTSD, stress fracture, depression, flat feet, lower back, and muscle spasms in the back. While his recurrent left tibia fractures have no doubt interfered with his employment, there has been no indication of marked interference with employability due to this disability during the rating appeal discussed herein beyond that contemplated by the rating criteria. Additionally, there is no indication the Veteran has been frequently hospitalized due to his recurrent left tibia fractures. Therefore, referral for the assignment of an extraschedular disability rating is not warranted. ORDER Service connection for a respiratory disorder, to include asthma and obstructive sleep apnea, is denied. Service connection for diabetes mellitus is denied. An increased rating for recurrent left tibia fractures is denied. REMAND Regrettably, further review of the file has necessitated another remand with regard to the issue of entitlement to a rating in excess of 10 percent, effective prior to February 19, 2008, and a rating in excess of 30 percent, effective from February 19, 2008, for bilateral pes planus. In the parties' Joint Motion for Remand, it was noted that an outpatient podiatry note dated February 19, 2008 indicated that X-rays were reviewed with a protractor angle device and showed that the Veteran's calcaneal inclination angle was 0, which was an indication of severe flat foot deformity. This medical evidence was used to support the assignment of a 30 percent rating for the service-connected pes planus. The parties' also noted that x-rays taken at the time of the September 2007 VA examination did not appear to set forth such findings and upon remand, the Board was required to discuss the matter. In reviewing the February 19, 2008 podiatry note, the Board observes that it is unclear what x-rays were reviewed with the protractor angle. Hence, in the absence of this information, the Board may not make a determination with regard to the assignment of the higher 30 percent rating during an earlier time period. Additionally, in the February 2008 note, the podiatrist stated that "[i]f further x-ray measurements are needed that correspond to severe flatfoot deformity, this information can be provided by the podiatrist." Accordingly, the Board finds that remand is necessary for further evidentiary development prior to appellate review of the matter by the Board. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for bilateral pes planus since discharge from service. After securing the necessary release, the RO should obtain all newly identified records. (Duplicate records should not be requested). 2. Following completion of the above, the Veteran should be afforded a VA podiatry examination to ascertain the current and prior severity of the Veteran's bilateral pes planus. The claims folder should be made available to the examiner for review in connection with the examination. The examiner should examine the Veteran, review the Veteran's claims folder and provide all necessary clinical factors required in an examination worksheet pertaining to pes planus. All necessary special studies or tests are to be accomplished. Specifically, the podiatrist should report the date of the x-ray that was utilized in rendering the assessment of severe flat foot with a calcaneal inclination angle of 0 in the February 2008 outpatient podiatry note and discuss the x-ray findings reported at the time of the September 2007 VA examination. Current x-rays should also be taken to report the current calcaneal inclination angle of the Veteran's feet. 3. After the development requested above has been completed to the extent possible, the RO should again review the record and readjudicate the claim for entitlement to a rating in excess of 10 percent, effective prior to February 19, 2008, and a rating in excess of 30 percent, effective from February 19, 2008, for bilateral pes planus. If the benefit sought on appeal remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs