Citation Nr: 1305200 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-17 339A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 20 percent for a left knee disability. 2. Entitlement to a rating higher than 10 percent for barotraumic vestibular vertigo, including considering whether this disorder is, in actuality, Meniere's Disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1984. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, confirmed and continued a 20 percent rating for a left knee disability and a 10 percent rating for barotraumic vestibular vertigo. Another RO decision since issued in January 2010, during the pendency of this appeal, granted a temporary 100 percent rating for the left knee disability under 38 C.F.R. § 4.30 ("Paragraph 30") from September 11, 2008 to November 30, 2008, to compensate the Veteran for his convalescence following surgery. The 20 percent rating for this disability resumed as of December 1, 2008. The Board's analysis of this claim, therefore, considers whether a rating higher than 20 percent is warranted for this left knee disability at times when the Veteran did not have that temporary 100 percent rating. An even more recent March 2012 RO decision denied additional claims for service connection for sleep apnea and Meniere's Disease. In response to that decision, the Veteran filed a notice of disagreement (NOD) later that same month concerning the claim for sleep apnea, alleging that his service as a Navy diver and participation in many "free diving" exercises eventually had led to this condition. In a subsequent May 2012 statement, however, he withdrew his appeal of this claim. 38 C.F.R. § 20.204 (2012). He since has testified at a hearing at the RO in October 2012 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). And during the hearing he argued that his barotraumic vestibular vertigo is, in actuality, Meniere's Disease or has progressed to this condition. He explained that is why he had claimed entitlement to service connection for Meniere's Disease. The claim for a rating higher than 20 percent for the left knee disability requires further development before being decided on appeal. So the Board is remanding this claim to the RO via the Appeals Management Center (AMC). Whereas the Board, instead, is going ahead and deciding whether a rating higher than 10 percent is warranted for the barotraumic vestibular vertigo, including considering whether this disorder is, in actuality, Meniere's Disease or has progressed to it. FINDING OF FACT Since September 7, 2004, so within a year of the Veteran filing a claim in March 2005 for a higher rating for his vertigo disorder, this disorder has been manifested by dizziness and occasional staggering. CONCLUSION OF LAW Since September 7, 2004, the criteria have been met for a higher 30 percent rating for this vertigo disorder, though no greater rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.87, Diagnostic Code (DC) 6299-6204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). These notice requirements were met in this case by way of letters sent to the Veteran in May and November 2005. The letters advised him of the type of information and evidence necessary to substantiate his claim for a higher rating for his vertigo disorder and of his and VA's respective obligations in obtaining this supporting evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The RO also sent those letters prior to initially adjudicating his claim in August 2006, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). When the RO sent those letters, there was no requirement that VA also advise him of the "downstream" disability rating and effective date elements of his claim. But that is only actually a concern when the claim is for service connection or, following a grant of service connection, for a higher initial rating or regarding the effective date for the disability determined to be service connected. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the RO nonetheless provided this Dingess notice in another letter more recently issued in April 2008, and since has readjudicated this claim in supplemental statements of the case (SSOCs) issued in January 2010 and March 2012. So the claim has been reconsidered since providing even this additional Dingess notice. That in effect, then, rectified ("cured") the timing defect in the provision of this notice. Both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court/CAVC) have clarified that VA can provide additional necessary notice subsequent to the RO's initial adjudication of the claim as the Agency of Original Jurisdiction (AOJ), and that the subsequent readjudication of the claim following the provision of all required notice preserves the essential fairness of the adjudication, as a whole, inasmuch as it ultimately is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). There also were changes during the pendency of this appeal to what is considered sufficient VCAA notice. It initially was held that, for an increased-compensation claim, the Veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The RO provided the Veteran this type of Vasquez notice in August 2008. The Federal Circuit Court subsequently held, however, that the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific, i.e., it need not notify the Veteran of alternative diagnostic codes, and that the statutory scheme also does not require 'daily life' evidence for proper claim adjudication. Vazquez Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). Even more recently, the Court clarified that the notice must advise the Veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment. Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). This most recent decision also held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has on employment, is found in an increased-rating claim, his burden to demonstrate prejudice at the Court (CAVC) level does not shift to VA unless notice is not provided at all. VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There is no such pleading or allegation in this instance. As concerning the duty to assist him with his claim, his service treatment records (STRs) and VA treatment records are in the file. The RO also obtained his private treatment records and associated them with the file. He has not indicated there are any additional records needing to be obtained, so outstanding. The duty to assist him in obtaining his relevant medical records therefore has been satisfied. The duty to assist also includes, when appropriate, the duty to provide a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of his disability, reexamination is required. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded VA compensation examinations in December 2005, November 2008, and June 2010 to assess and reassess the severity of his vertigo disorder. The opinions consequently given on this determinative issue were rendered by medical health care providers following a comprehensive evaluation and interview of the Veteran and review of the claims file for the history of this disability. The examiners obtained an accurate history and provided rationale for their opinions regarding the severity of this disability. The examiners also addressed the applicable rating criteria. While more recently testifying during his October 2012 hearing before the Board, the Veteran took exception with some of the VA examiners' findings, particularly those who had evaluated him in 2008 and 2010, arguing, for example, that they did not test for Meniere's Disease, hence, the reason they did not observe it and confirm he has it. These examinations were provided by appropriate medical personnel, however. He has not called into question their credentials and qualifications to comment on the severity of his vestibular disorder, only instead maintained they should have done other testing. But the amount of testing deemed necessary by them was something solely within their discretion. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (indicating the Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). See also Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (wherein the Federal Circuit Court agreed and indicated that, where an appellant does not challenge a VA medical examiner's competence or qualifications, VA need not affirmatively establish the examiner's competency). To reiterate, the examination reports reflect review of his relevant medical history, including the reports of examiners that previously had made this diagnosis, and include the required comment on the symptoms associated with his vertigo disorder, regardless of the specific diagnosis of it, and most importantly comment on the severity of his symptoms in relation to the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (requiring that VA ensure the adequacy of examinations, else, explain why one cannot or will not be provided). Only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. So, in summary, the Board finds that it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve a meaningful or useful purpose or result in any significant benefit to the Veteran). This is especially true since in this decision the Board is increasing the rating for the Veteran's vertigo disorder from 10 to 30 percent, and he indicated during his hearing in October 2012 that he would be satisfied with an increase in his rating to this higher level, even if he did not receive an even greater rating. See AB v. Brown, 6 Vet. App. 35, 39-39 (1993) (indicating it is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary). Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor 38 C.F.R. § 4.3. His entire history is considered when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). But where, as here, entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has reviewed all evidence of record, the more critical evidence, that is, temporal focus, is on the evidence generated during the appeal period and, more specifically, since one year prior to the filing of this increased-rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If there have been occasions since when the disability has had differing degrees of severity, then the Board must "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the Veteran filed this increased-rating claim in March 2005, the Board must consider the evidence concerning this disability dating back to March 2004, one year prior. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). If it was factually ascertainable within the one year immediately preceding the receipt of this increased-rating claim that his disability met the requirements for a higher rating, then he is entitled to the higher rating as of the date that increase in disability was shown. See Harper v. Brown, 10 Vet App 125, 126 (1997). His vertigo disorder has been rated under 38 C.F.R. § 4.78, DC 6299-6204. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. According to DC 6204, which concerns peripheral vestibular disorders, a 10 percent evaluation is warranted for occasional dizziness. A 30 percent evaluation requires dizziness and occasional staggering. A note to this DC states that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. The Veteran has had a 10 percent rating for his vertigo disorder effectively since May 17, 2001. For the reasons and bases discussed below, however, the Board finds that a higher 30 percent rating has been warranted since September 7, 2004, though no greater rating. He was seen for treatment at a VA Medical Center (VAMC) in September 2004. He complained that his vertigo had worsened in the past couple of years. He denied vomiting, but reported having mild nausea. In a July 2005 private treatment record he reported vertigo symptoms including dizziness and having a stiff neck. He was unaware of any significant hearing loss, ear pain, pressure, or other ear problems, and the evaluating physician indicated the Veteran's vertigo episodes were not typical for Meniere's Disease, which that physician explained causes pressure and persistent dizziness for hours to days. So, ultimately, the diagnosis instead was cervical vertigo. The Veteran had a VA audiological examination in December 2005. He denied hearing loss, but reported being diagnosed with vestibular vertigo. He stated that his vertigo occurred daily with certain positions or sudden movements and that it was accompanied by nausea. He also reported occasional aural fullness. He had normal hearing, bilaterally, but the examiner indicated she could not speak to the Veteran's vestibular vertigo claim. An August 2008 private treatment record noted the Veteran complained of dizziness that had existed for one month. The diagnosis was Meniere's Disease. In an October 2008 private treatment record he complained of Meniere's Disease, but ultimately was diagnosed instead with labyrinthine dysfunction of his right ear and post-traumatic vertigo of his left ear. He had a VA compensation examination in November 2008 for his ear disease claim. He reported suffering from vertigo and tinnitus. He denied any hearing loss. He also reported then recently being diagnosed with Meniere's Disease, which he believed was related to his diving injury in service that had caused his vertigo disorder. He indicated he experienced vertigo episodes 3-4 times a day and that it sometimes was accompanied by nausea. The examiner noted a history of vertigo and balance or gait problems, occurring daily. He diagnosed Meniere's Disease of the left ear, but which he concluded was unrelated to the injury in service. His rationale was that the Veteran had claimed that his left ear was injured in a diving accident in service, although his STRs show it instead was his right ear. He also denied hearing loss or tinnitus of his right ear. This examiner further clarified that Meniere's Disease was a labyrinthine disorder of uncertain cause, but characterized by tinnitus, fluctuating hearing loss, and aural fullness. The Veteran had a VA audiological examination in June 2010. His hearing acuity again was observed as within normal limits. He had a VA examination for ear disease that same month. He reported believing his vertigo disorder had progressed to a form of Meniere's Disease. He reported episodes of aural fullness in his ears and nausea, associated with his vertigo. The examiner noted a history of dizziness or vertigo occurring several times a week with a history of balance or gait problems also occurring several times a week, although it appears he did not personally observe any gait or imbalance problems during the course of that examination. He diagnosed vertigo, but then went on to state there was no evidence of Meniere's Disease. He offered a rather lengthy rationale for why he believed the Veteran did not have Meniere's Disease. He explained that Meniere's Disease referred to a presentation of symptoms with an idiopathic etiology. The classic pathologic lesion of Meniere's Disease could only be definitively diagnosed by postmortem histopathologic analysis of the temporal bone. The other symptoms, including hearing loss, vertigo, and tinnitus, could also occur secondary to inner ear disorders, which causes Meniere's Syndrome. He therefore concluded the Veteran did not have Meniere's Disease because his vertigo disorder symptoms were brought on as a result of his diving experience in service, not on their own. He also concluded the Veteran did not have Meniere's Syndrome because he had no objective evidence of hearing loss. Furthermore, the Veteran's symptoms come from two different ears, which did not fit with a diagnosis of Meniere's, where all symptoms come from the same pathological process in one or both ears. The Veteran had labyrinthine dysfunction of the right ear and post-traumatic vertigo of the left ear. The Veteran's wife provided a statement in June 2007. She indicated his vertigo was almost continuous and that he had become so used to it that he almost did not recognize it anymore. She noted that he often tripped when walking, had frequent staggering, and at least once a month had severe symptoms of vertigo with vomiting and nausea lasting up to 3 days. During his October 2012 hearing before the Board, the Veteran testified that his vertigo caused nausea (he said he often feels as though he will "throw up). He also testified that he experienced staggering and dizziness because of his vertigo, that his symptoms are sometimes severe, and that they usually last for about a week at a time when they occur. He clarified that he had not received any treatment for this condition since 2008, but only because he was told there was nothing else that could be done for him. He and his wife are competent to describe the frequency and severity of his vertigo and associated symptoms. See 38 C.F.R. § 3.159(a)(2). Their statements and testimony concerning this also are credible, so ultimately probative evidence supporting the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In reviewing the claims file, including the medical evidence addressing the severity of the vertigo disorder in relation to the applicable rating criteria, and taking into account the Veteran's and his wife's probative lay statements concerning this, the Board finds that a higher 30 percent rating has been warranted for this disability since September 7, 2004, the date he complained his vertigo disorder had worsened. That was within the one year period immediately preceding the filing of his claim in March 2005 for a higher rating for this disability, so he is entitled to this higher rating as of that date (September 7, 2004) when it was factually ascertainable that he met the requirements for this higher rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). This is the maximum rating available under DC 6204 and, as mentioned, is the rating he indicated during his hearing he would be satisfied with. See again AB, 6 Vet. App. at 38-39. The Board also nonetheless has considered whether application of other DCs might provide grounds for assigning an even higher rating. DCs 6200-6201 pertain to otitis media, but he has not been diagnosed with this condition. DCs 6202 and 6208-6209 relate to otosclerosis and neoplasms of the ear, respectively. He does not have either of these diagnoses, so a separate rating under these DCs is unwarranted. Finally, DCs 6207 and 6210-6211 pertain to loss of auricle, chronic otitis externa, and perforation of the tympanic membrane (eardrum), none of which he has been diagnosed with, so they, too, are inapplicable to his claim and circumstances. With regards to his contention that his vertigo disorder should now be considered Meniere's Disease, he admittedly has been diagnosed with Meniere's Disease. See August 2008 private treatment record. There is just minimal rationale offered for this diagnosis, however, and this is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Also, the private physician making this diagnosis did not indicate whether it is related to the Veteran's military service, including the diving injury mentioned, or by way of or in lieu of his service-connected vertigo disorder. The November 2008 VA examiner also stated the Veteran had Meniere's Disease, but went on to explain that it was unrelated to his service-connected vertigo disorder. Most recently, the June 2010 VA examiner stated the Veteran did not have Meniere's Disease and, most importantly, offered supporting rationale as to why the Veteran did not meet the requirements for this diagnosis. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). In this case, the Board assigns the most probative weight to the June 2010 VA examiner's opinion as concerning whether the Veteran has Meniere's Disease. This, as mentioned, is because the August 2008 private examiner did not offer rationale for his opinion or discuss whether there was attribution of his diagnosis of Meniere's Disease to a disease, event or injury during the Veteran's military service or discuss whether related to the Veteran's service-connected vertigo disorder. The November 2008 VA examiner noted the symptoms for Meniere's Disease, but again did not offer rationale for why he believed the Veteran had Meniere's Disease and, in any event, did not relate or attribute it to his military service, including by way of or in lieu of the service-connected vertigo disorder. The June 2010 VA examiner, in comparison, listed the factors and medical evidence relied on in determining the Veteran did not have Meniere's Disease or Syndrome, as he did not have the type of symptoms and source of symptoms required to sustain this diagnosis, also had different symptoms affecting each ear and different etiologies of those symptoms. Also, notably, he has no objective evidence of hearing loss, which is required for rating under 38 C.F.R. § 4.87, DC 6205, for Meniere's Syndrome. For these reasons and bases, the Board finds that the Veteran has not been entitled to a rating higher than 30 percent for his vertigo disorder at any time since September 7, 2004. In assigning this higher 30 percent rating, but no greater rating, the Board has resolved all reasonable doubt concerning the severity of his disability in his favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lastly, in exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321(b)(1). The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, though, the Board finds that the rating criteria sufficiently contemplate the extent and severity of the service-connected vertigo disorder, including insofar as addressing the Veteran's symptoms and complaints. His primary complaints are of chronic dizziness, staggering, and nausea. But his existing rating takes this into account. Furthermore, he admitted during his October 2012 hearing that he had not received any treatment for his vertigo disorder since 2008, so in the then past 4 years. And even when he was receiving treatment, it was on an outpatient basis, rather than as an inpatient, certainly not as a frequent inpatient. He also has made it clear that he had to stop working because of his left knee disability, not instead on account of his vertigo. See e.g., December 2005 and June 2010 VA examination reports. The rating criteria therefore are adequate to evaluate this disability and referral for consideration of an extra-schedular rating is unwarranted. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A higher 30 percent rating is granted for the vertigo disorder retroactively effective as of September 7, 2004, though no greater rating, subject to the statutes and regulations governing the payment of VA compensation. REMAND Unfortunately, the remaining claim requesting a rating higher than 20 percent for the left knee disability must be remanded, rather than immediately decided. Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. For increased-rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of his disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). During his October 2012 hearing before the Board, the Veteran testified that his left knee disability had worsened significantly since his September 2010 VA examination, specifically pointing to the fact that he now requires a knee brace to help stabilize this knee, especially on weight bearing, but also to help with the pain and swelling that he additionally experiences. He testified, as well, that he felt rushed during the September 2010 VA examination because the examiner had had a problem with the Veteran he had examined right before him. The Veteran said the examiner was distracted by the prior examinee's threats of physical violence, although it appears that actually may have been in regards to an earlier November 2008 examination. See December 2008 statement. In any event, the Veteran needs to be reexamined to reassess the severity of his left knee disability. In other testimony during his hearing, aside from talking about how this disability had worsened since his prior examination, he said his doctors are beginning to contemplate whether he will need a total knee replacement, though he admittedly has not reached this stage. When a claimant alleges that his service-connected disability has worsened since the last examination, a new examination is required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See also, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran also testified during his October 2012 hearing that he had been treated at the VAMC in Reno, Nevada, since 2010 for his left knee disability. These records are not in the claims file, however, so should be obtained and considered since they are also relevant. 38 C.F.R. § 3.159(c). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran to identify all sources of VA and non-VA health care he has received for his left knee disability since 2010. This includes, but is not limited to, the treatment and prescription of a left knee brace he received at the VAMC in Reno. If the records identified, such as these, are in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), whereas subpart (c)(1) controls if they are not. So make as many attempts to obtain identified records as are required to comply with this VA regulation, depending on who has custody of the records. Also appropriately notify him if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule a VA compensation examination to reassess the severity of the Veteran's left knee disability. a) The claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including those mentioned in this REMAND, must be reviewed by the examiner for the history of this disability. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. b) The examiner should perform all necessary diagnostic testing and evaluation. c) The examiner must measure range of motion on flexion and extension. In reporting the results of range-of-motion testing, the examiner must indicate whether there is any objective evidence of pain or painful motion, including on account of arthritis, and specify at what point in the range of motion pain sets in. The examiner should also discuss whether there is instability of the left knee and, if so, to what extent in terms of whether it is slight, moderate or severe. d) As well, the examiner must indicate whether there is incoordination, weakened movement, or premature or excess fatigability on use of this knee, including during prolonged or repetitive motion. And, if feasible, the examiner should try and quantify the extent of additional functional impairment this causes, including during prolonged or repetitive use of this knee or when the Veteran's symptoms are most problematic ("flare ups"). e) The examiner must also provide an opinion concerning the impact of the Veteran's left knee disability (and other service-connected disabilities) on his ability to work in a job that could be considered substantially gainful versus just marginal in comparison, when considering his level of education, prior work experience and training, but not his advancing age or impairment attributable to disabilities that are not service connected. It is essential the examiner discuss the medical rationale for all opinions expressed, if necessary citing to specific evidence in the file. If the examiner cannot provide a response without resorting to mere speculation, he/she must not only indicate this but, more importantly, discuss why a response is not possible or feasible, such as by specifying whether additional information, evidence or other procurable data is needed, there are multiple possible reasons, with none more prevalent than another, etc. In other words, merely saying he/she cannot respond will not suffice. 3. Then readjudicate this remaining claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs