Citation Nr: 1305449 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 08-01 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left knee disability to include as secondary to service-connected disability. 2. Entitlement to service connection for residuals of a left foot injury to include as secondary to service-connected disability. 3. Entitlement to an increased evaluation for right chronic knee strain, currently evaluated as 20 percent disabling. 4. Entitlement to an initial compensable for right knee extension prior to May 2010 and beyond 30 percent for right knee extension thereafter. 5. Entitlement to an increased evaluation for a right ankle injury currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1972, from November 1990 to June 1991, and from October 1991 to February 1992. The Veteran served in the Army National Guard from June 1979 to June 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In May 2009, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In April 2010, the Board remanded this claim for additional development. As to the issues decided below, the Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA examinations were performed which are adequate to make a determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Clarification of the issues on appeal The claim for an increased evaluation for a right knee disorder greater than 20 percent disabling under Diagnostic Code 5257 was appealed to the Board, and in April 2010, the Board remanded the claim. While the case was in remand status, the Veteran was granted a separate 30 percent evaluation for limitation of extension of the right knee effective from May 2010. The assignment of a separate 30 percent evaluation for limitation of extension of the right knee is not a full and final determination of [the] issue on appeal, as a higher evaluation may be assigned, and as such, the issue remains in appellate jurisdiction. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). Further, while the case was in remand status, service connection for fibromyalgia was granted. Therefore, that issue is no longer before the Board. Also, the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total rating based on unemployability due to service-connected disability (TDIU) is part and parcel of an increased rating claim when raised by the record. The Board notes that the issue was denied by the RO in January 2009, and the Veteran disagreed in February 2009. In August 2010, the Veteran was issued a statement of the case. He did not submit a substantive appeal. Thus, the TDIU claim is not currently before the Board on appeal. As noted in Rice, a TDIU rating may be pursued as a separate claim from a claim for increased rating. Accordingly, given the specific procedural background in this case, a TDIU claim is not deemed to be a component of the current appeal. In light of above, the Board has recharacterized the Veteran's claims as stated on the title page of this decision. FINDINGS OF FACT 1. The Veteran's left foot disorder is not related to a disease or injury in service, and the preponderance of the evidence is against an etiological relationship (e.g. causation or aggravation) with a service connected disability. 2. Throughout the pendency of this appeal, the Veteran's right knee is not manifested by severe recurrent subluxation or lateral instability. 3. The Veteran's right knee disorder is not shown to have extension limited to 5 degrees or more prior to May 2010; the disorder is not shown to be anklyosed in flexion between 10 to 20 degrees, or have extension limited to 30-44 degrees from May 2010. 4. There is X-ray evidence of arthritis in the Veteran's right knee and evidence of painful motion. 5. The Veteran's right ankle disability is manifested by complaints of stiffness and pain while standing and walking. Limitation of motion is no more than moderate. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot injury to include as secondary to service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for a higher evaluation beyond 20 percent for chronic right knee strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4 .10, 4.40, 4.45, 4.71, 4.71a, DCs 5256, 5257, 5258, 5260, 5261 (2012). 3. The criteria for an initial compensable evaluation for right knee extension prior to May 2010 or beyond 30 percent for right knee extension thereafter have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4 .10, 4.40, 4.45, 4.71, 4.71a, DC 5261 (2012). 4. The criteria for a separate 10 percent rating for arthritis and painful motion of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5003 (2012). 5. The criteria for an initial disability rating in excess of 10 percent for a right ankle injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate a claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2011); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b) (1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A predecisional letter dated in November 2006 satisfied the duty to notify provisions. See Quartuccio, 16 Vet. App. at 187. That letter informed the Veteran of what was needed to substantiate his claims, how he could assist, what VA is responsible for and what the evidence must show. Further, the Veteran has neither alleged nor demonstrated that he has been prejudiced by defective VCAA notice. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The November 2006 letter also advised him that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA's duty to notify has been satisfied. The Board also finds that VA's duty to assist has been satisfied. The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained and associated with the claims file. There is no indication that any additional evidence remains outstanding and VA's duty to assist in obtaining relevant treatment records has been satisfied. The duty to assist includes, when appropriate, the duty to an examination of the Veteran. The Veteran was afforded VA examination in support of his claims. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nichols, 21 Vet. App. 303, 312 (2007). The VA examinations are adequate as they relate to the Veteran's right ankle and right knee since they were predicated on a review of medical record and the examiners fully addressed the rating criteria that are relevant to rating the disabilities at issue here. There is adequate medical evidence of record to make a determination in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. As to the service connection claim decided below an adequate opinion was provided. Barr v. Nichols, 21 Vet. App. 303, 312 (2007). The examiner reviewed the records and offered an opinion with rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues adjudicated herein has been met. 38 C.F.R. § 3.159 (c)(4) (2012). As is noted in the Introduction, the Veteran offered testimony in support of his claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Newhouse v. Nicholson, 497 F.3d 1298 (2007). Service Connection for a Left Foot Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). A disability which is proximately due to or the result of a service-connected disease or injury can be service connected. See 38 C.F.R. § 3.310 (2012). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). As to Reserve service, the applicable laws and regulations permit service connection only for a disability resulting from disease or injury incurred in or aggravated coincident with ACDUTRA, or for disability resulting from injury during INACDUTRA. See 38 U.S.C.A. § 101(22), (23), (24); 38 C.F.R. § 3.6. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran is seeking service connection for left foot injury residuals to include as secondary to service-connected disability. Medical records indicate that the Veteran has been diagnosed with plantar fasciitis, calcaneal spur, Morton's neuroma and left foot fractures. As such, the Veteran has a current disability and the Board looks to the issues of (i) service incurrence and nexus for direct service connection and (ii) causation or aggravation for secondary service connection. The service treatment records show that in June 1986, a trailer tongue struck the Veteran on his left foot. His big toe was bruised. An x-ray was negative. It was noted that the Veteran was serving during a period of active duty for training (ACDUTRA) when he was injured. After service, the record first indicates complaints and treatment for left foot complaints in the 2000's, several years after service discharge. VA outpatient treatment records show that in October 2004 the Veteran was treated for bilateral heel pain, and plantar fasciitis was diagnosed. VA outpatient treatment records show that the Veteran complained of pain in the left foot in March 2009, and Morton's neuroma was diagnosed in May 2009. The Veteran was examined by VA in November 2007. It was noted that the onset of his left foot injury was in 1989, and that he had pain begin again in 2005. He complained of pain with an inability to stand for more than a few minutes or walk more than 1/4 mile. Examination showed tenderness of the dorsum 2nd through 5th toes. X-rays showed a healed fracture of the fifth metatarsal in good position, and a 2mm. calcaneal spur. The diagnosis was left foot injury residuals. The examiner opined that the left foot pain is more likely related to his history of plantar fasciitis, calcaneal spur and additional fractures than his well healed 5th metatarsal from 1989. It was pointed out that after 1989, he worked as a grounds keeper until 2007 and X-rays show an additional fracture in 2007 that was not noted on the 2006 X-rays. The Veteran underwent a VA examination for his left foot in May 2010. It was noted that VA records show that in October 2004 he was seen in the podiatry clinic and he was found to have plantar fasciitis in both feet and that private records showed a Morton's neuroma in the left foot. The Veteran was examined. X-rays showed chronic healed fracture of the fifth metatarsal of the left foot; no acute fracture or dislocation or degenerative change in the left foot. Left foot plantar fasciitis and left foot Morton's neuroma were diagnosed. The examiner found that the Veteran's left foot disorder, including his fasciitis, calcaneal spur and history of Morton's neuroma is less likely as not secondary to or aggravated by the service connected right knee disorder or the service connected right ankle disorder. The rationale was that the left foot X-rays show an old healed fracture, and otherwise it is without degenerative changes. It was stated that the Veteran had three other causes for pain in the left foot including plantar fasciitis, calcaneal spur and Morton's neuroma. On VA Gulf War examination in May 2011 examination of the left foot showed painful motion, swelling, tenderness and weakness. There was tenderness to palpation of the dorsum of the mid foot, plantar fascia and pinpoint plantar fascial insertion at the heel. Discussion As to direct service connection, there must be evidence of a connection between the inservice events and the current findings. It is noted that there are VA opinions in the file regarding the etiology of the left foot disorder. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the opinion offered by the VA examiner in November 2007 regarding direct service connection to be most probative. The examiner indicated that the left foot disorder was not due to left foot trauma in service. The causes of his disorder were noted. Rationale was provided and the claims file was reviewed. Further, the opinion stands without contradiction in the record. With regard to the Veteran's own belief and contentions that his left foot disorder is related to service, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder). Competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, the left foot disorder in this case is complex, involving several diagnoses including plantar fasciitis, Morton's neuroma, calcaneal spur, and x-rays revealing an old healed fracture of the fifth metatarsal. Therefore, the Board concludes that sorting out these disorders and determining which ones, if any or none, may be the result of in-service injury or symptoms, or the result of continuing foot symptoms since service, is the type of complicated medical question that requires medical expertise. The left foot disorders are not the type of conditions capable of lay diagnosis, much less the type of conditions that can be causally related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Therefore, the Veteran's statements as to the left foot symptoms he experienced in service and since service constitute competent evidence. However, his own contentions that his current foot disorders are connected or linked to those symptoms do not constitute competent evidence. Having found that lay evidence is not competent with regard to a nexus between the current left foot disorders in this particular case and an injury or left foot symptoms in service, a discussion as to credibility of lay evidence is not necessary. However, the Board notes that, in any event, the Veteran has not specifically stated in this case that the left foot has been symptomatic since service. In fact, on VA examination in November 2007, he reported left foot pain began in 2005. With regard to the medical evidence of nexus in this case, the Board finds it persuasive. Concerning this, the Board notes that, after reviewing the complete claims file, including the Veteran's service treatment records, the VA doctor found that the Veteran's current disability was not related to his injury in service. A full rationale was provided for this opinion. In sum, the post-service medical evidence of record does not show that the Veteran's current disability is related to his active duty service through direct incurrence. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is therefore denied. 38 U.S.C.A. § 5107(b). As to the claim for secondary service connection, the Board notes that on VA examination in May 2010, the examiner opined that the left foot disorder was not caused by the service connected right knee or right ankle disorder. This opinion was provided after an examination of the appellant, an interview of the appellant during which a medical history was elicited, and a review of the claim file. The examiner provided an opinion with rationale. As such, the Board finds the examination and opinion to be competent and reliable. Moreover, the opinion stands uncontradicted by any other competent evidence of record. Consequently, the Board finds, based on this evidence, that the left foot disorder was not caused by or aggravated by the service connected right knee or right ankle disorders. The Board acknowledges the appellant's contentions and belief that his left foot disorder was caused by his right knee or his right ankle disorder. However, for the same reasons noted above with regard to the connection to service of the complicated foot disorders involved in this case, the Board concludes that these are not the kind of disorders subject to lay observation, and they are not the kind of disorders whose etiology is capable of lay opinion. Rather, whether such conditions as plantar fasciitis, Morton's neuroma, calcaneal spur, and x-rays revealing an old healed fracture of the fifth metatarsal are the result of a knee or ankle disorder is a medical question requiring medical evidence for its resolution. The etiology of the left foot disorder and whether it is secondary to or has been aggravated by service-connected disability requires specialized training for a determination as to its causation, and is therefore not susceptible of lay opinion. In this regard, when the appellant was examined in May 2010, the VA examiner specifically stated that the left foot disorder was not caused by or aggravated by the appellant's right knee or right ankle disorder. This opinion is inclusive and unequivocal and provides no nexus on a secondary basis to include aggravation. The Board thus finds that there is no competent evidence in the record to the contrary, i.e., that the left foot disorder is secondary to or has been aggravated by the right knee or the right ankle disorder. Therefore, the evidence preponderates against the claim in this case. As the preponderance of the evidence is against the claim, the benefit- of-the-doubt doctrine does not apply and service connection on a direct basis or on a secondary basis must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluations for a Right Knee Disorder and a Right Ankle Disorder 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Evidence Private records show the Veteran complained of knee pain in December 2006. Crepitation was noted on examination, as was tenderness. The Veteran was examined by VA in December 2006. His medical history was noted. It was noted that he ambulates with a cane and uses an ankle brace. The examiner noted that the Veteran's gait was steady and that when casually observed, he did not appear to be relying on his cane. The examiner stated that the Veteran was currently employed. The Veteran complained of knee and ankle pain. On examination it was noted that there was no redness, swelling or tenderness of the knees or ankles. Flexion of the right knee was noted to be to 145 degrees with full extension. The ankles showed dorsiflexion to 20 degrees bilaterally and planar flexion to 45 degrees bilaterally. He rose on heels and toes and assumed the squatting position with no difficulty. Lachman's, drawer, and McMurray testing were normal. The knees and ankles moved against strong resistance with no difficulty. The examiner noted that the Veteran showed wincing with pain when touched to thigh muscles, calf muscles, plantar aspect of the feet and other areas not related to the joints and that the Veteran showed no difficulty with range of motion of the joints. Prior X-rays of the knees and ankles were noted to show mild degenerative changes. The diagnoses were, old fracture, right ankle, and minimal degenerative joint disease of the knees and ankles, bilaterally. The examiner stated that the Veteran had degenerative joint disease of the knees and ankles, which would be consistent with his age. He also noted that the Veteran had been found to have a chronic pain condition related to fatigue and depression. He stated that the Veteran would not have developed any secondary arthritis to his right ankle and knee and not related to any injury which occurred during service. Private records show right knee pain was noted in August 2007. The Veteran was examined by VA in November 2007. The claims file was reviewed. As to the right knee, the Veteran complained of intermittent pain with walking long periods or strenuous activity. He stated he was unable to stand for more than a few minutes. It was noted that he used a cane. There was no instability. Flexion was from 0 to 130 degrees, with pain beginning at 130 degrees and no additional loss of motion on repetitive motion. Extension was to 0 degrees. There was crepitus. Prior X-rays were reviewed. The diagnosis was, degenerative joint disease, mild, right knee. The Veteran was examined by VA in May 2010. The claims file was reviewed. His medical history as to his right ankle and right knee was documented. He reported injuring his ankle in 1972 and that it has been problematic since that time. As to the right knee, he reported having pain in 1990, and subsequently undergoing surgery. He complained of right ankle pain, weakness, stiffness, swelling, fatigability, and lack of endurance. He stated that the ankle hurts with standing and worsens with walking. He denied flare-ups of the knee or ankle. He noted having pain, weakness, stiffness, instability, lack of endurance and effusion of the knees and right ankle. Examination showed right knee flexion to 90 degrees on active range of motion and to 110 degrees on passive range of motion. Pain begins at 90 and ends at 110 degrees. There was no loss of range of motion on repetition. Extension was to -20 degrees on active range of motion and to -15 degrees on passive range of motion. There was no loss of range of motion on repetition. There was no varuu-valgus in neutral over or in 30 degrees of flexion. There was a negative Lachman, negative drawer and negative McMurrays test. Right ankle dorsiflexion was to 10 degrees on active and passive range of motion. Pain began and ended at 10 degrees on active and passive range of motion and there was no lost of motion on repetition. Right ankle plantar flexion was to 30 degrees on active and passive range of motion. Pain began and ended at 30 degrees on active and passive motion, and there was no lost of motion on repetition. The Veteran had varus-valgus movement at 5 degrees, bilaterally. The pertinent diagnoses were right knee degenerative joint disease with internal derangement and right ankle history of avulsion fracture with moderate osteoarthritis. In a May 2011 addendum, the May 2010 examiner stated there was no change in range of motion of the right knee and that the Veteran had an antalgic gait. The Veteran underwent a VA Gulf War Syndrome examination in May 2011. Examination of the right knee showed motion from 0-130, guarding with extension. There was a negative drawer. There was positive patella grind and a complaint of global pain of the knee with an attempt at McMurrys. Muscle groups bulk and strength were symmetric and without atrophy. There was no objective evidence of pain on active motion or pain on motion after three repetitions of range of motion. There was no additional limitation of motion after repetitive motion. As to the right ankle, active range of motion was noted as dorsiflexion to 20 degrees and plantar flexion to 40 degrees. There was no objective evidence of pain on active motion or pain on motion after three repetitions of range of motion. There was no additional limitation of motion after repetitive motion. A Right Knee Disorder The Veteran's service-connected right knee disability is rated as 20 percent disabling under Diagnostic Code 5257 and as 30 percent disabling under Diagnostic Code 5261. The 30 percent rating was assigned effective May 2010. The currently assigned 20 percent evaluation is congruent with recurrent subluxation or lateral stability which is moderate. With respect to instability of the knee, Diagnostic Code 5257 provides for a 10 percent evaluation where there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is assigned where there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation where there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). For the Veteran's claim for an increased evaluation to succeed, the evidence of record must reflect recurrent subluxation or lateral instability which is severe. However, after review of the record, the Board concludes that the evidence does not reflect that the Veteran's service-connected right knee disability manifests in severe recurrent subluxation or lateral instability. The Board determines that a rating in excess of the 20 percent for instability is not warranted for the right knee under DC 5257 at any time during the appeal period. With respect to knee instability, the December 2006 VA examiner noted that the Veteran rose on heels and toes and assumed the squatting position with no difficulty, and that Lachman's, drawer, and McMurray testing were normal. In November 2007, it was noted that there was no instability. In May 2010, the Veteran denied instability, and Lachman's, drawer, and McMurray testing were normal. While VA treatment records during the course of this appeal report complaints of knee pain and referral and prescription of a knee brace, no specific notes regarding ligament laxity or instability are of record. Accordingly, the Board determines that a rating in excess of 20 percent for instability is not warranted for the right knee. In sum, there is no evidence that this instability approximates the level of "severe" as per the criteria of Diagnostic Code 5257. As such, an evaluation in excess of 20 percent for instability of the Veteran's service-connected right knee instability is not warranted at any point during the appeal period. See Hart and Fenderson, both supra. Additionally, no dislocation of the semilunar cartilage or effusion of the joint has been noted. Accordingly, the Board finds that rating pursuant to Diagnostic Code 5258 is not warranted. There is no ankylosis and as such consideration of a rating under Diagnostic Code 5256. Finally, as the Veteran has not had surgical removal of cartilage, impairment of the tibia and fibula, or exhibits genu recurvatum, consideration of a rating under either Diagnostic Code 5259, 5262 or Diagnostic Code 5263 is not necessary. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (2012). Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II (2012). Limitation of Motion Diagnostic Code 5260 provides for a noncompensable evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides for a noncompensable 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. Finally, where extension is limited to 45 degrees, a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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). Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The Office of General Counsel (GC) has issued two opinions pertinent to claims of entitlement to higher initial or increased evaluations for knee disabilities. These GC opinions reflect that a Veteran who has x-ray evidence of arthritis and instability of the knee may be evaluated separately under Diagnostic Codes (DCs) 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997) (23-97); VAOGCPREC 9-98 (August 14, 1998) (9-98). Additional disability is shown when a Veteran meets the criteria for a noncompensable evaluation under either DC 5260 or 5261, which include flexion limited to 60 degrees or extension limited to 5 degrees, or when there is painful motion such that it adds to the actual limitation of motion shown under DC 5260 or DC 5261. 9-98 at paragraphs 1, 6. A separate evaluation may also be granted under DC 5003 and 38 C.F.R. § 4.59, when a Veteran technically has full range of motion that is inhibited by pain. VAOGCPREC 9-98 at paragraphs 4, 6; see also Lichtenfels v. Derwinski, 1 Vet. App. at 488. Additionally, the Court held in Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that when read together, 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 38 C.F.R. § 4.59 (pertaining to painful motion) require that painful motion of a major joint or groups caused by degenerative arthritis (where the arthritis is established by X- ray) is deemed to be limited motion and entitled to a minimum 10 percent rating per joint, even in the absence of actual limitation of motion. However, the Court has recently held that "pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes the Court's prior decision in Lichtenfels, but, in Mitchell, the Court distinguishes Lichtenfels as limited to the specific situation where a claimant demonstrates noncompensable loss of motion and is rated under Diagnostic Code 5003 (degenerative arthritis established by X-ray findings). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As noted, the Veteran has been assigned a 30 percent rating for limitation of extension of the right knee effective from May 2010 under Diagnostic Code 5261. As to whether a higher rating is warranted prior to that time for limitation of flexion or limitation of extension, the Board notes that on VA examination in December 2006, extension was noted as full, and flexion was to 145 degrees. In November 2007, extension was to 0 degrees and flexion was to 130 degrees. In May 2010, extension was to -20 degrees on active range of motion and to -15 degrees on passive range of motion. Flexion was to 90 degrees on active range of motion and to 110 on passive range of motion. There was no loss of range of motion on repetition. Prior to May 2010, the evidence does not show that extension is limited. Thus a separate rating during this time frame under Diagnostic Code 5261 is not appropriate. As to flexion, it was not limited to 60 degrees or less at any time during the appeal period. Thus a separate rating under Diagnostic Codes 5261 or 5262 is not warranted. The record also does not show a rating beyond the 30 percent assigned for limitation of extension is warranted from May 2010. There is no showing of limitation of extension to 30 degrees. In considering the evidence under the laws and regulations as set forth above, the Board finds that a separate rating for arthritis is warranted. There is X-ray evidence of arthritis and evidence of painful motion. In this regard on VA examination in December 2006, flexion and extension were full, and while X-rays showed arthritis, there was no indication of painful motion. While private records in show complaints of pain, painful motion is not documented in 2006 or 2007. However, in November 2007, the Veteran complained of pain on walking and with activity and crepitus was noted. Motion was noted to elicit pain on flexion. In May 2010, the Veteran complained of pain and pain was documented on flexion. The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Board concludes that the Veteran is entitled to a 10 percent rating pursuant to VAOPGPREC 9-98 (August 14, 1998) due to documented painful motion and X-ray finding of arthritis. 38 C.F.R. §§ 4.7, 4.59; see Hart, 21 Vet. App. 505. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus a separate 10 percent rating for arthritis is warranted when painful motion is documented and arthritis is confirmed by X-ray evidence. Right Ankle The Veteran is service-connected for a right ankle disorder, rated as 10 percent disabling under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent disability evaluation is warranted for moderate limited motion of the ankle. A 20 percent disability evaluation is warranted for marked limited motion of the ankle. Words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, the Schedule for Rating Disabilities also provides some guidance by defining full range of motion of the ankle as zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II (2012). Based upon the findings noted above, the Board finds that the evidence does not support a rating in excess of 10 percent for the Veteran's right ankle disability. The December 2006 VA examination report indicates limitation of motion of plantar flexion to 45 degrees and of dorsiflexion to 20 degrees. In May 2010, plantar flexion was to 30 degrees and dorsiflexion was to 10 degrees. There are also complaints of pain, but no showing of incoordination, excessive fatigability, or further loss of motion after repetition on examination. Although the Veteran has complained of pain in his ankle, wears a brace, and states he has limitations on prolonged walking and standing, the Board finds that while the evidence supports a finding that the Veteran's ankle disability moderately affects his range of motion, this disability does not establish marked limitation of motion under DC 5271. The Board finds that the evidence does not support a finding that the Veteran's right ankle disability markedly affects his range of motion. As such, a rating in excess of 10 percent is not for application. 38 C.F.R. § 4.71a, DC 5271. Other diagnostic codes pertaining to the ankle must be considered to determine if a compensable evaluation is warranted under other criteria. The Veteran is not entitled to a higher rating under DC 5270 or 5272 because he has not demonstrated or been diagnosed with ankylosis of the ankle. In addition, the Veteran has not been diagnosed with malunion of os calcis or astragalus and never underwent an astragalectomy. Thus, DC 5273 and 5274 are not for application in this case. See 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, 5274. Furthermore, the Veteran's ankle did not show signs of instability. Considering whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint, the Board observes that the Veteran has complained of pain and difficulty with prolonged walking and standing. However, when viewed in conjunction with the medical evidence, his complaints do not tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant a higher rating. Therefore, the Board finds that the holding in DeLuca and the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not provide a basis for a higher rating. Further, the Board has determined that staged ratings are not for application in this case. Hart, 21 Vet. App. 505. The Board finds the Veteran is not entitled to a rating in excess of 10 percent for his right ankle disability. The benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also, Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Veteran's right knee and right ankle disorders are not so unusual or exceptional in nature as to render the assigned rating inadequate. The Veteran's service-connected right knee and right ankle disorders are rated under the provisions that specifically contemplate the level of impairment caused by the disabilities. Thun, 22 Vet. App. at 115. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disorders congruent with the disability picture represented by the disability ratings assigned herein. Ratings in excess of the currently assigned disability ratings are provided for certain manifestations of the disorders, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for the current ratings assigned more than reasonably describe the Veteran's disability level and symptomatology. Therefore, the schedular evaluations are adequate and no referral is required. Thus, based on the evidence of record, the Board finds that the Veteran's service-connected right knee and right ankle disorders cannot be characterized as exceptional cases so as to render the schedular evaluation inadequate. The threshold determination for a referral for extraschedular consideration was not met and, thus, the Board finds that a referral for an extraschedular rating is not warranted. Thun, 22 Vet. App. at 115. The Board has considered the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). The Veteran has not specifically indicated, and the record does not reflect, that his service-connected disabilities prevent him from obtaining and/or maintaining employment, the Board finds that Rice is not applicable to the current appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of a left foot injury to include as secondary to service-connected disability is denied. An increased evaluation for right chronic knee strain, currently evaluated as 20 percent disabling, is denied. An initial compensable evaluation for right knee extension prior to May 2010 or beyond 30 percent for right knee extension thereafter is denied. A separate 10 percent rating for arthritis of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. An increased evaluation for a right ankle injury currently evaluated as 10 percent disabling is denied. REMAND As a preliminary matter, the Board observes that the evidence of record at present is sufficient to decide the Veteran's claim for service connection for a left knee disorder under the theory of secondary service connection. However, the Veteran also asserts his claim under the theory of direct service connection. The theory of entitlement with regard to whether the Veteran's left knee disorder is directly related to service still requires further evidentiary development for proper adjudication of the Veteran's claim. This is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A private examiner, Dr. A.W, stated in a March 10, 2009 letter that the Veteran is a patient of his and that the Veteran has degenerative arthritis of the knees. He stated that it is possible that this condition was initiated by past injuries. In a March 19, 2009 statement, Dr. R.B.B. reported that the Veteran has osteoarthritis of the knees and that he believes that the Veteran's arthritic difficulties in his knee stem from his military injuries. In April 2010, the Board remanded this claim for an examination and opinion. It was noted that since there is evidence of in-service left knee symptomatology, a remand for a VA examination on a direct basis was requested. The Veteran was scheduled for a VA examination in May 2010, during which the examiner reviewed the Veteran's claims file and conducted an interview and physical examination of the Veteran. Based on his review of the record and examination of the Veteran, the examiner found that the left knee condition was not due to service. The rationale provided was that the service treatment records showed no repetitive problems with the left knee except those noted on April 25, 1972, and on June 13, 2001. He went on to state, however, that the VA and private physician notes record continued and worsening pain in the left knee. It does not appear that the May 2010 VA examination was adequate with respect to whether the Veteran's left knee disorder is related to his service. The 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). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A rationale must be elucidated by a discussion of the medical principles that apply to the medical facts relating to the Veteran's disability. In light of the inadequate medical conclusion the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of the Veteran's left knee disorder as it pertains to direct service connection. Accordingly, the case is REMANDED for the following action: 1. Submit the claims file to the May 2010 VA examiner for an addendum opinion. A copy of this REMAND must be made available to the examiner for review. Based on a review of the claims folder, including the service treatment records, private treatment reports, and VA treatment records, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current left knee disability is causally or etiologically related to his symptomatology in military service (October 1968 to June 1972; November 1990 to June 1991; and from October 1991 to February 1992) as opposed to its being more likely due to some other factor or factors. In particular, the examiner should comment on the relationship, if any, between the April 1972 finding of tenderness in his left patellar area and the December 1990 assessment of sprain and his current left knee disability. In providing this opinion, examiner MUST provide a complete rationale upon which his or her conclusion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his opinion. If the May 2010 examiner is not available, refer the file to another physician for the requested opinion. 2. Following completion of the above, re-adjudicate the issue on appeal. If the decision remains in any way adverse to the Veteran, he should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to this issue as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs