Citation Nr: 1306276 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 02-16 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating higher than 10 percent for right knee disability, including chondromalacia and osteoarthritis with associated limitation of motion from November 30, 2001, to October 1, 2012. 2. Entitlement to a rating higher than 10 percent for left knee disability, including chondromalacia and osteoarthritis with associated limitation of motion. 3. Entitlement to an initial rating higher than 30 percent for major depressive disorder, not otherwise specified (NOS), from November 30, 2001, to November 13, 2011. 4. Entitlement to a rating higher than 50 percent for this major depressive disorder, NOS, since November 14, 2011. 5. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1972 to March 1982. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for higher ratings for her bilateral knee disability, as well as her petition to reopen her previously denied claim for service connection for a psychiatric disorder. A hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing) was scheduled for June 2006 to allow the Veteran opportunity to testify concerning her claims. She failed to report for the hearing, however, so was a "no show". She did not provide any good-cause explanation for her absence or request to reschedule her hearing. Indeed, to the contrary, she later confirmed that she no longer wanted a hearing. See Report of General Information dated October 26, 2011. Her hearing request, therefore, is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In a November 2006 decision during the pendency of her appeal, the Board reopened her claim for service connect for a psychiatric disorder and remanded it, along with her claim for an increased rating for the chondromalacia of her knees, for further development. The Board again remanded her claims in May 2010. A February 2012 decision since issued granted her claim for service connection for a psychiatric disorder, specifically, for major depressive disorder NOS. An initial 30 percent rating was assigned from November 30, 2001, to November 13, 2011, and a higher 50 percent rating as of November 14, 2011. Service connection also was granted for limitation of motion of her knees, especially limitation of extension; 0 percent ratings were assigned for this effective November 14, 2011, for each knee. During the pendency of her appeal, she also had right total knee replacement surgery (arthroplasty). Because of that surgery, she has received a temporary 100 percent rating for her right knee disability from October 2, 2012, until November 31, 2013, as explained in an October 2012 rating decision. Beginning on December 1, 2013, so not until the end of this year, a lesser 30 percent rating will take effect, albeit still higher than the 10 percent rating she previously has had for the chondromalacia affecting this knee and the separate 0 percent rating for the limited extension ofthis knee. Thus, the relevant time period under consideration as concerning the ratings for this knee is from November 1, 2001, the date of receipt of her claim for increase, to October 1, 2012, the day before her knee replacement surgery. In March 2012, less than a month following the granting of her claim for service connection for a psychiatric disorder, she filed a claim to service connect additionally her anxiety and sleeping impairment as secondary to her now service-connected major depressive disorder, NOS. In a letter dated June 22, 2012, the RO informed her that her claim for anxiety would be treated as a claim for an increased rating for her major depressive disorder, so on the premise that her anxiety is a symptom or manifestation of this already service-connected disability, not instead a separately ratable condition. Because these secondary service connection claims were filed within the one-year appeal period of the RO's February 2012 decision, the Board is construing them as a notice of disagreement (NOD) with the disability ratings assigned for her major depressive disorder. She has not been provided a statement of the case (SOC) concerning these claims, however, or given opportunity in response to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect her appeal of these claims to the Board. And in this circumstance, the appropriate disposition is to remand, rather than merely refer, the claims. Manlincon v. West, 12 Vet. App. 238 (1999). This issue therefore is being addressed in the REMAND portion of this decision, below. Additionally, during her June 2003 VA examination and again in an April 2007 statement, the Veteran alleged that she was unemployable because of her service-connected disabilities. This, then, raises the additional issue of her entitlement to a TDIU. See Rice v. Shinseki, 22 Vet.App. 447 (2009) (holding that a derivative claim for a TDIU, when either expressly raised by the Veteran or reasonably raised by the other evidence of record, is in actuality an attempt to obtain an appropriate rating for a disability or disabilities and therefore is part and parcel of the claim for an increased rating for the disability or disabilities forming the basis of the derivative TDIU claim, not instead in and of itself a separate claim). Since, however, the decision as to whether to award a TDIU is partly dependent on the outcome of her claim for higher ratings for her major depressive disorder, NOS, these claims are "inextricably intertwined." See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). As such, the Board must also remand this claim. The claims are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not show the Veteran to have recurrent subluxation or lateral instability in either knee at any time under consideration. 2. She has osteoarthritis in both knees, however, objectively confirmed by X-ray. 3. For the period from November 30, 2001, to June 1, 2003, her right knee disability was manifested by limited flexion to 50 degrees; and her left knee disability was manifested by limited flexion to 90 degrees. 4. For the period from June 2, 2003, to November 13, 2011, her right knee disability was manifested by limited flexion to 70 degrees and limited extension to 15 degrees; and her left knee disability was manifested by limited flexion to 45 degrees and limited extension to 30 degrees. 5. For the period from November 14, 2011, to October 1, 2012, her right knee disability was manifested by flexion limited to 80 degrees and extension limited to 5 degrees. 6. Since November 14, 2011, her left knee disability has been manifested by limited flexion to 90 degrees and limited extension to 5 degrees. CONCLUSIONS OF LAW 1. For the period from November 30, 2001, to June 1, 2003, the criteria for a rating higher than 10 percent for the right knee disability have not been met on a schedular or extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5257, 5260, 5261 (2012). 2. For the period from November 30, 2001, to June 1, 2003, the criteria for a rating higher than 10 percent for the left knee disability have not been met on a schedular or extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5257, 5260, 5261 (2012). 3. For the period from June 2, 2003, to November 13, 2011, the criteria for a rating of 20 percent for the right knee disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5257, 5260, 5261 (2012). 4. For the period from June 2, 2003, to November 13, 2011, the criteria for a rating of 40 percent for the left knee disability have been met due to limited extension. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5257, 5260, 5261 (2012). The criteria for a separate rating of 10 percent for the left knee disability also have been met due to limited flexion. Id.; see also VAOPGCPREC 9-2004 (Sept. 17, 2004). 5. For the period from November 14, 2011, to October 1, 2012, the criteria for a rating higher than 10 percent for the right knee disability have not been met on a schedular or extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5257, 5260, 5261 (2012). 6. For the period from November 14, 2011, onward, the criteria for a rating higher than 10 percent for the left knee disability have not been met on a schedular or extra-schedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38 of the United States Code ("38 U.S.C.A."), regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) (as noted by citations to "Fed. Cir.") and by the U. S. Court of Appeals for Veterans Claims (Court/CAVC) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). In deciding these claims, the Board has reviewed the evidence in the Veteran's claims file, both her physical file and electronic ("Virtual VA") 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 her). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Conversely, laypersons equally have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue requiring expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Ideally, this notice should be provided to the Veteran prior to the initial adjudication of his/her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). If the claim arose in the context of the Veteran trying to establish his/her entitlement to service connection, and this since has been granted, then the initial intended purpse of the notice has been served, so additional notice is not required concerning the "downstream" elements of the claim, that is, regarding the rating assigned for the disability and effective date. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved containing a discussion of the reasons or bases for assigning the particular rating and effective date, at least initially, and citing the applicable statues and regulations, etc. In a claim that instead originated as a claim for an increased disability rating, meaning the disability at issue already had been determined service connected in years past, so not concerning an initial rating, the VCAA requires that VA notify the claimant that to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., 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. The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him or her of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life. Vazquez-Flores, 580 F.3d at 1278. Moreover, a VCAA notice error is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his/her claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran was not sent a VCAA notice letter regarding the claims under consideration until June 2003, after the initial RO adjudication. This notice erroneously described the Veteran's claim as a claim to reopen, rather than a claim for an increase of her chondromalacia of the bilateral knees. A notice pursuant to Dingess was sent in March 2006, and a fully compliant VCAA notice was sent in February 2007. The February 2007 letter advised the Veteran of what evidence was required to substantiate her claims, and of her and VA's respective duties for obtaining evidence. It advised her that she needed to submit evidence showing that his disability had increased in severity. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. Although the notice was issued after the initial adjudication, the Board does not prejudice the Veteran by adjudicating on the merits at this time. The claim has been adjudicated multiple times since the correct VCAA notice was sent, and the Veteran has had ample opportunity to supplement the record, which she has done. Further, she has not alleged any prejudice in the defective notice. Thus, the duty to notify has been met. The duty to assist provisions of the VCAA have been also met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, lay statements, and reports of VA examinations from January 2000, February 2002, June 2003, November 2011, and August 2012. The examinations are adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a review of the claims folder and the Veteran's history, and appropriate diagnostic tests. Additionally, because the Veteran has a history of knee injuries unrelated to service, the November 2011 VA examination discusses which of the Veteran's symptoms can be attributed to her service-connected disability, which had not been discussed by previous VA examiners. This case was remanded in November 2006 and May 2010 for additional development. Specifically, the RO was to obtain Social Security Administration (SSA) records, determine the duration of the Veteran's incarceration, determine whether she wanted a rescheduled hearing before a VLJ, obtain any medical records from the county jail, determine the authenticity of a private medical record submitted on her behalf, and schedule a VA examination. SSA indicated all records had been destroyed, and the RO made a formal finding of unavailability of such in October 2012. The Veteran did not authorize the RO to obtain records from the jail or confirm the authenticity of the record, but the RO did attempt to complete those directives. The Veteran has a responsibility to support her own case. 38 U.S.C.A. § 5107(a). Due to her failure to cooperate with the RO in fulfilling the remand directives, the claim will be decided on the basis of the evidence of record. The Veteran's period of incarceration was confirmed, and VA examinations were scheduled and took place. The RO substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of her claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of her appeal of these issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's assigned right knee disability ratings have already been staged due to her arthroscopy. When evaluating musculoskeletal system disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's right knee disability was rated at 10 percent disabling under DCs 5257 (other impairment of knee, recurrent subluxation or lateral instability) and 5261 (limitation of extension of the leg) for the period under consideration, from November 30, 2001, to October 1, 2012. The Veteran's left knee disability is currently rated at 10 percent disabling under DCs 5257 and 5003-5261 (degenerative arthritis; limitation of extension of the leg). See 38 C.F.R. § 4.27 (2011) (hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under DC 5257, a 10 percent disability rating is assigned when the evidence shows slight disability due to recurrent subluxation or lateral instability. A 20 percent rating is assigned with moderate disability, and a 30 percent rating is assigned for severe disability. See 38 C.F.R. § 4.71a, DC 5257 (2012). Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. In application of DC 5003, the Court has held that "painful motion of a major joint... 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, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59 (2012). With any form of arthritis, painful motion is an important factor of disability. See id. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. As noted above, joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59 (2012); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In the case of Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court clarified its holding in Lichtenfels, explaining that the evaluation of painful motion as limited motion only applies to the evaluation of arthritis under DC 5003, as mandated by the express language in that provision, and only when limitation of motion is noncompensable under the applicable diagnostic code. The Court further explained that although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id., at 43. Separate ratings may be assigned under DCs 5257 and 5003 for arthritis of the knee with limited motion, provided that limitation of motion at least meets the criteria for a 0 percent rating. See VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 1, 1997). The DCs pertaining to limitation of motion of the knee are 5260, limitation of flexion of the leg, and 5261, limitation of extension of the leg. Under DC 5260, a 0 percent disability rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent disability rating is assigned when limited to 45 degrees; a 20 percent disability rating is assigned when limited to 30 degrees; and, a 30 percent disability rating is assigned when limited to 15 degrees. 38 C.F.R. § 4.71a (2012). Under DC 5261, a 0 percent disability rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent disability rating is assigned when limited to 10 degrees; a 20 percent disability rating is assigned when limited to 15 degrees; a 30 percent disability rating is assigned when limited to 20 degrees; a 40 percent disability rating is assigned when limited to 30 degrees; and, a 50 percent disability rating is assigned when limited to 45 degrees. Id. Normal range of motion of the knee is defined as extension to 0 degrees and flexion to 140 degrees. See id., Plate II (2012). Separate ratings may be assigned for limitation of flexion and limitation of extension for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). The record reveals that the Veteran's knees have demonstrated degenerative arthritic changes since at least 1998. See Singing River Radiology Group dated February 18, 1998. At the January 2000 VA examination, the Veteran's right knee showed a range of motion from 0 to 95 degrees, with pain throughout. The left knee's range of motion was from 5 to 100 degrees, again with pain throughout. The VA examiner did not see evidence of ligamentous instability in either knee. Chondromalacia of the bilateral knees was diagnosed. The examiner did not believe it was medically possible to quantify any additional functional limitations resulting from pain, but did agree that pain would limit ability during flare-ups or with increased use. See VA examination dated January 18, 2000. A private X-ray report from that same day also showed degenerative changes in both knees. See Singing River Radiology group dated January 18, 2000. At the February 2002 VA examination, the Veteran complained of pain and swelling, difficulty climbing up or down stairs, and that her knees buckle. She exhibited a slow and cautious gait. Her right knee showed a range of motion from 0 to 50 degrees, with pain and marked guarding throughout. Slight swelling was observed. Her left knee had a range of motion of 0 to 90 degrees, without pain. It was slightly swollen. No ligamentous instability was noted in either knee. She was unable to do a full squat. The examiner did not believe it was medically possible to quantify any additional functional limitations resulting from pain, but did agree that pain would limit ability during flare-ups or with increased use. See VA Examination dated February 25, 2002. X-rays taken that day reveal moderately severe osteoarthritic changes of both knee joints. See VA radiology profile dated February 25, 2002. In a July 2002 orthopedic consultation, the Veteran complained of pain in her knees since she was in the service. Her knees showed no instability, and had full extension. Flexion was greater than 90 degrees, although not specified. In October 2002, a physician noted that the Veteran has bilateral knee pain, and that she had painful but unrestricted range of motion of both knees at that appointment. See VA treatment dated October 21, 2002. In April 2003, the Veteran was admitted into the hospital for psychiatric care. At that time, the physicians noted that she had limited motion in both legs. See VA treatment dated April 22, 2003. At the June 2003 VA examination, the Veteran complained of chronic pain and swelling of the knees. She told the examiner she had been using a wheelchair since March 2003. She also uses a cane, and got up from the wheelchair slowly, stiffly, and cautiously. She needed assistance getting on and off the examination table. Her right knee had range of motion of 15 to 70 degrees, and her left knee had range of motion of 30 to 45 degrees. The examiner was unable to test whether her right knee was unstable because of her guarding behavior. No definite instability was seen in the left knee. The examiner did not believe it was medically possible to quantify any additional functional limitations resulting from pain, but did agree that pain would limit ability during flare-ups or with increased use. See VA examination dated June 2, 2003. A statement from the Veteran's private physician indicated that both her right and left knee had a range of motion of 15 to 30 degrees, and that she suffers from constant pain, and that she is unable to work. See Dr. E.D. dated February 5, 2007. VA orthopedic treatment records show the Veteran continuing to complain of pain from May through August 2010. At the November 2011 VA examination, the Veteran's knees were both diagnosed with chondromalacia and osteoarthritis. She complained of pain, swelling, popping, and grinding of the knees. She said her knees affected her ability to sit down and stand up, as well as get in and out of the bathtub. She was able to get onto the examination table without assistance. She did not complain of any flare-ups. She walks with a cane, and uses a wheelchair when she is out of the home. She wears prosthetic wedges in her shoes to help with balancing. The examiner noted that it is impossible to differentiate the symptoms of her service connected knee disabilities from any other knee disabilities she has. She told the examiner that she has hip pain, which also makes walking painful. Her range of motion of the right knee was 5 to 80 degrees, with pain starting at 30 degrees, although there was no objective evidence of painful motion. Left knee showed a range of 5 to 90 degrees, with pain starting at 40 degrees, but no objective evidence of painful motion. After three repetitions, she was able to flex her knees to the same degree. Both her knees showed less movement than normal, pain on movement, swelling, and deformity (genu varum of the right knee, genu valgum of the left knee). Anterior, posterior, and medial-lateral instability tests were normal for both knees. He found no evidence of subluxation. The Veteran has no meniscal conditions. The examiner said that her knees would affect her ability to work, in that she cannot stand or walk without assistance for more than ten minutes, and she cannot squat or kneel. See VA examination dated November 14, 2011. The Veteran attended a VA examination in August 2012, however, a physical examination was not possible due to her recent hip replacement. See VA examination dated August 23, 2012. The evidence of record does not show the Veteran had recurrent subluxation or lateral instability at any time in either knee, therefore she is not entitled to an increased rating under DC 5257. For the period from November 30, 2001, the date of receipt of the Veteran's claim for an increased rating for her bilateral knee disability, to June 1, 2003, the day before the Veteran's June 2003 VA examination, the rating assigned for each knee is 10 percent under DC 5003, degenerative arthritis. The Veteran was diagnosed with degenerative arthritis in both knees prior to the filing of this claim, and it has been confirmed over the years. As discussed above, degenerative arthritis is rated under the DCs pertaining to limitation of motion, and if noncompensable under those codes, then a 10 percent rating is awarded for each joint affected. For this time period, the Veteran was consistently able to extend both of her knees to 0 degrees, thus not compensable under DC 5261. Similarly, she was generally able to flex her knees to at least 90 degrees, well exceeding the minimum requirement for even a 0 percent rating. As such, the Veteran's limited motion is noncompensable under DCs 5260 and 5261, thus she is entitled to 10 percent for each knee under DC 5003 due to degenerative arthritis. During the February 2002 VA examination, the Veteran's right knee had flexion of only 50 degrees. While technically noncompensable under DC 5260, she could have been awarded 10 percent because it nearly approximates the criteria for a compensable rating under that code, pursuant to application of 38 C.F.R. § 4.7. But, because DC 5003 refers the rater to the codes pertaining to limitation of motion, and 10 percent is awarded under DC 5003 when the limited motion is noncompensable under those codes, the Veteran receives the same benefit regardless of the code applied. She cannot receive 10 percent under both codes. Simultaneous compensation for degenerative arthritis and limited motion amounts to pyramiding, that is, duplicate compensation for identical symptoms, which is prohibited. See 28 C.F.R. § 4.14 (2012). For the period from June 2, 2003, the day of her June 2003 VA examination, to November 13, 2011, the day before her November 2011 VA examination, the Veteran is entitled to an increased rating for each knee. At the June 2003 VA examination the Veteran's ranges of motions were more limited than they had been previously. Her right knee's range was from 15 to 70 degrees, her left knee was able to move from 30 to 45 degrees. She is entitled to a disability rating of 20 percent for her right knee under DC 5261, because she was only able to extend her knee to 15 degrees. Her left knee, which was more disabled, entitles the Veteran to a disability rating of 40 percent under DC 5261, because extension was limited to 30 degrees, and 10 percent under DC 5260, because flexion was limited to 45 degrees. The Veteran submitted a statement, dated February 2007, from Dr. E. D., a private physician that had previously treated her knees, which notes the Veteran's range of motion as 15 to 30 degrees for both knees. The Board does not find this statement credible. Certainly, Dr. E. D. is competent to test and report on the Veteran's symptoms. However, the statement is not on letterhead, it contains spelling and grammatical errors, it is not signed, and it resembles other papers submitted by the Veteran, which raise the question of whether it was actually rendered by Dr. E. D. In May 2010, the Board remanded the Veteran's claim so the RO could verify the validity of that statement. The Veteran did not authorize the RO to contact Dr. E. D., and so this remand directive was not completed. Neither the Veteran nor her representative have addressed this issue. Due to the issues noted regarding the statement, and the Veteran's failure to cooperate in verifying its validity, the Board does not find it credible, nor probative. See Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). For the period from November 14, 2011, the day of her November 2011 VA examination, to October 1, 2012, the day before her total knee arthroplasty, the Veteran's right knee is rated at 10 percent under DC 5003. At the November 2011 VA examination, her right knee range of motion was from 5 to 80 degrees. As her limited range of motion was noncompensable under both DCs 5260 and 5261, she is entitled to 10 percent due to her degenerative arthritis. From October 2, 2012, the Veteran has been awarded 100 percent due to her arthroplasty. For the period from November 14, 2011, onward to the date of this opinion, the Veteran's left knee is rated at 10 percent under DC 5003. Her left knee range of motion was from 5 to 90 degrees, noncompensable under DCs 5260 and 5261, thus she is entitled to 10 percent due to her degenerative arthritis. A higher rating based on functional loss is not warranted at any time under consideration. The Veteran has complained of constant pain in her knees, and an increased difficulty in stepping up or sitting down. Her pain, however, has not caused additional disability beyond that reflected in the range of motion measurements. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996) (holding that the provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion). The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40 (2012). With regard to the period from November 30, 2001, to June 1, 2003, and from November 14, 2011, onward, the January 2000 and the February 2002 VA examiners did not think it was possible to quantify functional loss in the event of flare-ups or increased use, but they did not see any additional functional limitations due to pain. A VA physician later noted the Veteran had painful but unrestricted motion in October 2002. During the November 2011 VA examination, the Veteran was able to repeat range of motion testing three times with no additional limitation, and no objective evidence of painful motion was seen. The evidence of record does not reflect that the Veteran's functional impairments during these time periods were so disabling as to effectively meet the requirements for an assignment of a 20 percent rating under DCs 5261 or 5260. In acknowledging the functional limitations imposed by the Veteran's bilateral knee disability, it is important to note the factors enumerated in 38 C.F.R. §§ 4.40 and 4.45, as discussed in Deluca, overlap with the factors addressed in DC 5003. These factors, specifically painful motion, are found in this case, and provide the support to assign the 10 percent rating under DC 5003. Simultaneous compensation for functional loss as well as degenerative arthritis amounts to pyramiding, which is prohibited. See 38 C.F.R. § 4.14 (2012). With regard to the period from June 2, 2003, to November 13, 2011, the June 2003 VA examiner did not think it was possible to quantify functional loss in the event of flare-ups or increased use, but they did not see any additional functional limitations due to pain. He did note that she was guarded throughout the entire examination. The Veteran was able to walk with her cane, and get onto the examination table with assistance. The evidence does not show that the Veteran's functional impairments of the right leg were so much more disabling as to effectively meet the requirements for a 30 percent rating. Similarly, the evidence does not show that her left knee functional impairments were so much more disabling as to effectively meet the requirements for a 50 percent rating under DC 5261, or 20 percent rating under DC 5260. During this time period, the Veteran was impaired, and she moved slowly, and required assistance in performing some activities. These limitations are contemplated by the ratings assigned. The Veteran is not entitled to a higher rating at any time under any of the other DCs pertaining to the knee and leg. The record does not show the Veteran to have ankylosis, thus DC 5256 does not apply. There is no record of the Veteran having any problems with the semilunar cartilage of either knee, thus DCs 5258 and 5259 do not apply. Finally, the evidence does not show impairment of the tibia and fibula, or of genu recurvatum, thus DCs 5262 and 5263 also do not apply. See 38 C.F.R. 4.71a (2012). The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., pain and limitation of motion) are contemplated by the rating criteria, as discussed above. No examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a rating in excess of 10 percent for a right knee disability for the period from November 30, 2001, to June 1, 2003, is denied. Entitlement to a rating in excess of 10 percent for a left knee disability for the period from November 30, 2001, to June 1, 2003, is denied. A 20 percent evaluation for a right knee disability under DC 5261 is granted for the period from June 2, 2003, to November 13, 2011. A 40 percent evaluation for a left knee disability under DC 5261 is granted for the period from June 2, 2003, to November 13, 2011. A 10 percent evaluation for a left knee disability under DC 5260 is granted for the period from June 2, 2003, to November 13, 2011. Entitlement to a rating in excess of 10 percent for a right knee disability for the period from November 14, 2011, to October 1, 2012, is denied. Entitlement to a rating in excess of 10 percent for a left knee disability for the period from November 14, 2011, onward is denied. REMAND As briefly discussed in the introduction, after the RO granted the Veteran's service connection claim for major depressive disorder, she filed a claim for service connection of anxiety and a sleeping impairment, both as secondary to her service-connected major depressive disorder. The RO has begun development efforts in regard to this claim, and has informed the Veteran that the claim for anxiety will be treated as a claim for an increase in her major depressive disorder. A liberal reading of the claim, however, leads to the conclusion that, as the two disabilities she is claiming are symptoms of her service-connected major depressive disorder, it should be treated as a notice of disagreement to the ratings assigned for that disability. When a notice of disagreement is filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Further, the Veteran has raised a derivative claim for a total disability evaluation due to individual unemployability (TDIU). While the Board has jurisdiction over such issue as part and parcel of the Veteran's disability rating claim, further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. This issue is also inextricably intertwined with the issue of whether the Veteran is entitled to increased initial ratings for her major depressive disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). This issue was previously referred to the RO in the Board's May 2010 for appropriate development, and the RO has sent the Veteran a VCAA notice addressing it in June 2012. On remand, the RO should continue conducting such development, to include providing the Veteran with a VA examination to determine the effect her service-connected disabilities have on her employability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should re-examine the Veteran's claim for increased initial ratings for major depressive disorder NOS. If no additional development is required, including any required notice prescribed by current regulations and caselaw, the RO/AMC should prepare an SOC in accordance with 38 C.F.R. § 19.29 (2012), unless the matter is resolved by granting the benefit sought, or by the Veteran's withdrawal of the NOD, which was filed as a new claim in March 2012. If, and only if, the Veteran files a timely substantive appeal, should any issue be returned to the Board. 2. Contemporaneously with the above, the RO/AMC should develop and adjudicate the Veteran's raised claim for TDIU. If warranted, the RO/AMC schedule a VA examination to determine if the Veteran's service-connected bilateral knee disability and major depressive disorder render her unable to secure and follow a substantially gainful occupation. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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