Citation Nr: 1308932	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  06-34 526A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a chronic disability manifested by memory loss, including as due to undiagnosed illness.

2.  Entitlement to an initial compensable disability rating from July 14, 2005 to January 11, 2010, for left shoulder trauma with strain and instability.

3.  Entitlement to an initial compensable disability rating from July 14, 2005 to January 11, 2010, for right knee strain.

4.  Entitlement to an initial compensable disability rating from July 14, 2005 to January 11, 2010, for left knee strain.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel


INTRODUCTION

The Veteran had active military service from July 1999 to July 2005.

A November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in relevant part, denied the Veteran's claim for service connection for memory loss, but granted service connection for left shoulder trauma with strain and instability, also for left knee and right knee strains, and assigned initial 0 percent (i.e., noncompensable) ratings for these disabilities retroactively effective from July 14, 2005, the day following his discharge from service when he had returned to life as a civilian.  Aside from appealing the denial of service connection for his memory loss, he also appealed for higher initial ratings for these disabilities that were determined service connected.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating assigned for a disability just after establishing his entitlement to service connection for the disability, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award to compensate him for variances in the severity of the disability).


The RO since has issued another decision in October 2010, during the pendency of this appeal, assigning what amounts to "staged" ratings.  In that decision the RO increased the ratings for the left shoulder trauma with strain and instability, and for the left and right knee strains, from 0 to 10 percent as of January 12, 2010, the date of medical records in the file from Drs. D.E. and J.V. at Kelsey Seybold Clinic showing a worsening of these disabilities.

The Veteran since has had a hearing at the RO in October 2011 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).  At the outset of the proceeding, the Veteran indicated he was satisfied with these higher 10 percent ratings for his left shoulder, left knee, and right knee disabilities, but that he still disagreed with the 0 percent ratings that initially were assigned for these disabilities prior to January 12, 2010, that is, from July 14, 2005 to January 11, 2010.  He argued that he was entitled to 10 percent ratings for these disabilities even during that initial period because they were as severe then as now.  So the Board has recharacterized these claims accordingly.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that receiving a higher rating during the pendency of an appeal, but less than the highest possible rating, does not abrogate the appeal unless the Veteran expressly indicates he is satisfied with the new rating he received).

During the hearing, the Veteran withdrew another claim that he also had appealed to the Board - for service connection for hearing loss.  38 C.F.R. § 20.204 (2012).  So that claim is no longer at issue.

In March 2012, the Board remanded these remaining claims to the RO via the Appeals Management Center (AMC) for additional development and consideration.

The Veteran also had perfected an appeal concerning a claim for service connection for a low back disorder.  However, the RO granted this claim in an October 2012 rating decision during the pendency of this appeal.  The RO assigned a 10 percent disability rating for degenerative joint disease of the lumbar spine, retroactively effective from July 14, 2005, so back the day following his discharge from service.  

He has not, in response, separately appealed either this rating or effective date, so this claim concerning his low back disorder also is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).


FINDINGS OF FACT

1.  A chronic disability manifested by memory loss, including due to an undiagnosed illness, was not manifest in service and is not currently shown.

2.  From July 14, 2005 to January 11, 2010, the Veteran's service-connected left shoulder strain was shown to have full range of motion with no findings of painful motion; he maintained motion well above the shoulder level and there was no clinical or X-ray evidence of dislocation, nonunion or malunion of the clavicle or scapula; there also was no X-ray evidence of arthritis.

3.  From July 14, 2005 to January 11, 2010, the Veteran's service-connected right knee strain was shown to have full range of motion, with no findings of painful motion, lateral instability, recurrent subluxation or other functional impairment; there also was no X-ray evidence of arthritis.

4.  From July 14, 2005 to January 11, 2010, the Veteran's service-connected left knee strain was shown to have full range of motion, with no findings of painful motion, lateral instability, recurrent subluxation or other functional impairment; there also was no X-ray evidence of arthritis.



CONCLUSIONS OF LAW

1.  The Veteran is not shown to have chronic memory loss due to disease or injury incurred in or aggravated by his active military service, including on account of undiagnosed illness.  38 U.S.C.A. §§ 1100, 1110, 1117, 1118 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.317 (2012).

2.  The criteria are not met for an initial compensable disability rating from July 14, 2005 to January 11, 2010, for the left shoulder trauma with strain and instability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2012).  

3.  The criteria are not met for an initial compensable rating for the right knee strain from July 14, 2005 to January 11, 2010.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5257, 5260, 5260 (2012).

4.  The criteria are not met for an initial compensable rating for the left knee strain from July 14, 2005 to January 11, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5257, 5260, 5260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA enhanced VA's duty to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA also redefined the obligations of VA with respect to the duty to assist the Veteran with the claim.  Id.  In this particular case at hand, the Board finds that VA fulfilled these obligations.

Duty to Notify

In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).
These obligations arise upon receipt of a complete or substantially complete application for benefits, but there are no such obligations if no reasonable possibility exists of substantiating the claim.

When the claim is for service connection, the notice should address all five elements of the claim:  1) Veteran status, 2) existence of the claimed disability, 3) relationship between the disability and military service, but also the "downstream" 4) disability rating, and 5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).


VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, letters dated in August 2005, May 2006, and April 2012 were sent to the Veteran apprising him of the information and evidence needed to substantiate his claims, including in terms of his and VA's respective responsibilities in obtaining this supporting evidence.  In addition, the May 2006 letter also informed him about how VA determines "downstream" disability ratings and effective dates, as required by Dingess.  Keep in mind also that the claims concerning the ratings initially assigned for his left shoulder and right and left knee disabilities arose in the context of him trying to establish his underlying entitlement to service connection for these disabilities, which since has been granted.  So his appeal of these claims concerns a "downstream" issue, namely, the propriety of these initial ratings.  In cases, as here, where the increased-rating claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and the claim since has been granted and he has appealed this "downstream" issue concerning the initial rating assigned for the disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  Thereafter, once an NOD has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with him, including as to what evidence is necessary to establish a more favorable decision with respect to this downstream elements of the claim.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003).  And the Veteran received this required SOC discussing the "downstream" disability rating element of his claims, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial ratings versus higher ratings.
Further concerning these initial rating claims, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), mandating a significantly greater degree of specificity of the notice in claims for increased ratings.  However, that decision was overturned on appeal by the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court).  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  The Federal Circuit Court explained that generic notice is all that is required and that VA does not also have to apprise the Veteran of alternative diagnostic codes or daily-life evidence.

Moreover, although not all of the notice provided preceded the initial adjudication of the claims, the claims since have been readjudicated in SSOCs issued in November 2009, October 2010, and October 2012.  So the claims have been reconsidered since providing all required notice.  Therefore, any arguable timing defect in the provision of the notice has been rectified ("cured"), according to the holdings in Mayfield and Prickett, supra.

Duty to Assist

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence.  The Veteran's pertinent medical records, including his service treatment records (STRs), VA treatment records, and private treatment records have been obtained to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In the March 2012 remand, the Board noted that according to his testimony during his October 2011 Travel Board hearing, he indicated that he had received treatment for disabilities at issue shortly after his discharge from service in July 2005.  He also had received treatment for the disabilities while attending the police academy.  Prior to entering the police academy, he had had a physical examination as well to determine whether he was physically fit to serve on the force.  He further testified that he was treated for his left shoulder and bilateral knee disabilities by a private physician in 2008.  Thus, on remand, the RO/AMC was directed to ask him whether there were any additional treatment records (VA and/or private) that needed to be obtained, including, but not limited to, any dated in or around July 2005 when he was discharged from service or in relation to his admittance to the police academy in August 2007, or while attending the police academy.

Pursuant to this remand directive, the AMC sent a letter to the Veteran in April 2012 requesting that he complete and return the enclosed authorization forms (VA Form 21-4142) so it could obtain his pertinent treatment records, including any records dated in or around July 2005 when he was discharged from service, or in relation to his admittance to the police academy in August 2007, or while attending the police academy.  He apparently did not reply to this request for this necessary information, however.  The duty to assist him with his claims is not a one-way street.  If he wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Therefore, the Board concludes the RO/AMC complied with the Board's March 2012 remand directive by means of the April 2012 VCAA assistance letter, and that the Veteran has been provided every opportunity to submit evidence and argument supporting his claims.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance).

As for the duty to provide an examination or opinion when indicated as necessary, the Veteran had VA examinations in September 2005, August 2005, July 2008, and May 2012, and the information obtained during those examinations allow the Board to decide his claims.  Additional examination, therefore, is not needed.  38 C.F.R. §§ 3.327(a), 4.2.


The September 2005 and May 2012 VA examinations concerned his claim for service connection for memory loss.  During that September 2005 VA examination, his memory was within normal limits, so did not evidence impairment.  He was diagnosed with an anxiety disorder, but the disorder was not etiologically linked to his military service or to any complaints of memory loss, to include in-service complaints of memory loss [in an April 2005 Report of Medical Assessment, he stated that he experienced memory degradation].  In addition, during the May 2012 VA examination, the examiner added that the Veteran's memory and attention screening revealed no concerns.  Based on the mental status evaluation, the examiner concluded the Veteran did not have a mental disorder diagnosis.  In regards to his contention that he had memory loss due to Anthrax vaccinations in service, the examiner pointed out he was not qualified to determine whether Anthrax vaccines could cause mild memory loss.  And although he stated that only a neuropsychologist could provide an opinion on such a matter, he also clarified that an examination with a neuropsychologist was unnecessary because there was not significant impairment in social, academic, or occupational functioning; the Veteran was functioning very well.  Thus, clearly the examiner found that although the Veteran had complaints of memory loss, it was at most mild and there was no actual ratable disability manifested by memory loss.  Accordingly, a VA neuropsychological examination or referral is unwarranted

The Veteran did, however, undergo a private neuropsychological evaluation in February 2006.  The examiner stated that testing for memory showed that the Veteran had poor short-term memory.  However, memory loss is a symptom and not a disability in and of itself.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted).  The Board recognizes that the examiner also diagnosed the Veteran with attention deficit hyperactivity disorder (ADHD) and amnestic disorder and, to some extent, related to the Veteran's memory loss to both disorders.  However, as explained further below, such opinion is of little to no probative value because the Board finds that the Veteran does not have ADHD or amnestic disorder.  See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence ").  In the May 2012 VA examination, the examiner specifically concluded the Veteran did not have ADHD or amnestic disorder because he did not meet pertinent criteria for either disorder.  In the private February 2006 evaluation report, the examiner did not discuss such pertinent criteria and, as such, his report is inadequate to establish these diagnoses.  38 C.F.R. § 4.125(a).  Thus, although the evidence of record shows the Veteran has subjective complaints of memory loss, there is no objective evidence of an underlying ratable disability manifested by memory loss, to include as due to undiagnosed illness.  As explained further below, his lay statements are not competent to establish the presence of a disability manifested by memory loss, including as a manifestation of undiagnosed illness.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim concerning rheumatic fever).

VA has no further duty to provide an examination or medical opinion with respect to the claim for service connection for memory loss.  38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

In regards to the increased initial rating claims, the Veteran underwent VA examinations in August 2005 and July 2008 concerning these other claims.  These VA examinations revealed findings that are adequate for rating his left shoulder, right knee, and left knee disabilities for the period of time specifically at issue from July 14, 2005 to January 11, 2010.  VA is not obligated to have him reexamined concerning these disabilities merely because of the passage of time since his prior evaluations for these disabilities, so not simply as a matter of course.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  This is especially true recognizing that the Board is charged with assessing the severity of these disabilities during a specified earlier point in time, hence, not currently, and those examinations occurred during this earlier time period at issue.  See also Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (indicating when it is necessary to obtain a "retrospective" medical opinion regarding the severity of a disability years earlier).

Given all that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate these claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran).

II.  Service-Connection Claim

A.  Pertinent Laws and Regulations

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 2013 WL 628429, at *4 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard.  See Walker, 2013 WL 628429, at *15 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).

The condition at issue in this case, memory loss, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a).  Therefore, 38 C.F.R. § 3.303(b) does not apply, so the Veteran is not permitted to show continuity of symptomatology since his service as an alternative means of etiologically linking his memory loss to his military service.  See Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).

Lay evidence nonetheless 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).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the Veteran's favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994).

Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection also may be established under 38 C.F.R. § 3.317.  See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing.).

Under that section, service connection may be warranted for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  See 76 Fed. Reg. 81,834 (Dec. 29, 2011) (extending the delimiting date).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities:  (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Guiterrez v. Principi, 19 Vet. App. at 8-9.  Further, lay persons are competent to report objective signs of illness.  Id.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar.  See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nichoslon, 19 Vet. App. 470 (2006).


A medically unexplained chronic multi-symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness.  A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2)(ii).

Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; (ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus.  38 C.F.R. § 3.317(c)(1-2).  The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service.

With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section.  Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service.  There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more.


Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation.  This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease.  If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column B in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column A in that same table.

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110, 1131 is warranted.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

B.  Factual Background

The Veteran's service treatment records show that between January 2000 and February 2004 he received six Anthrax vaccinations.  The records also include a Report of Medical Assessment, dated in April 2005.  In the report, in response to the question of whether he had suffered from any injury or illness while on active duty for which he did not seek medical care, he responded memory degradation, migraines, and anxiety (nervousness).  The examiner noted that the Veteran was never evaluated for any memory problems while on active duty.  He was subsequently discharged in July 2005.  

In July 2005, after his discharge, the Veteran filed a claim for entitlement to service connection for memory degradation.  He stated that during service, he received the Anthrax vaccine and subsequently developed memory problems.  It was his contention that the Anthrax vaccine caused his memory problems.  

In September 2005, the Veteran underwent a VA psychiatric examination.  At that time, he stated that after joining the Air Force, he started to experience problems with short term memory.  He noted that he forgot every day activities, such as appointments, and had difficulty concentrating.  According to the Veteran, his symptoms began three years ago.  Upon mental status evaluation, the Veteran's memory was within normal limits.  The examiner noted that during the interview, the Veteran's memory was well preserved for both recent and remote events.  The diagnosis was the following: (Axis I) generalized anxiety disorder, (Axis IV) no employment, family problems, and (Axis V) Global Assessment of Functioning (GAF) score of 65.  The examiner stated that mentally, the Veteran did not have difficulty performing activities of daily living.  He was able to establish and maintain effective work and social relationships and had no difficulty understanding commands.     

Private treatment records show that in February 2006, the Veteran underwent a neuropsychological evaluation that was conducted by J.B.B., Ph.D., a licensed psychologist.   The evaluation was to help determine the Veteran's feasibility for vocational rehabilitative services, as well as to assist in personal counseling and guidance.  Dr. B. stated that according to the Veteran, he had memory problems which he started to notice four years ago.  The Veteran denied experiencing any head injuries or other neurological disorder.  He had not worked since leaving the Air Force in 2005.  The Veteran's vocational objective was to pursue a bachelor's degree and then a doctoral degree.  

Upon mental status evaluation, the Veteran was oriented to person, place, time, and situation.  His thought processes were clear and rational and there was no evidence of a formal thought disorder.  He had some difficulty in maintaining focus and sustained concentration, and he was easily distracted.  The Veteran was given a battery of tests including tests for memory and learning.  He was able to repeat 5 digits forward and reverse 5 digits accurately.  Rote learning of a list of 12 unrelated words was severely deficient.  The ability to recall two prose passages which were read aloud to him was severely deficient.  There was no significant decay of the material following a 30-minute delay.  Continuous visual recognition memory was severely deficient.        

Following the mental status evaluation, Dr. B. diagnosed the Veteran with the following: (Axis I) attention deficit hyperactivity disorder, combined type; amnestic disorder, not otherwise specified (NOS), (Axis IV) psychosocial stressors: unemployment, financial strain, career uncertainty, limited physical functioning, and (Axis V) GAF score of 70.  Dr. B. stated that the Veteran met the diagnostic criteria for attention deficit hyperactivity disorder because the Veteran's mind often wandered and he had problems with attention and concentration.  He was easily distracted, impatient, easily bored, restless, and shifted from one task to the next without completing them.  Dr. B. also noted that the Veteran readily interacted with other people and was friendly, extroverted, conciliatory, and likely to get along with a wide variety of other people.  He also had a comfortable balance between social activities and enjoying his solitude.  Dr. B. further provided a list of the Veteran's functional limitations, which included poor short-term memory, including confabulation, and inefficient attention and concentration, easily distracted.   According to Dr. B., consistent with the Veteran's self-statement, the Veteran had a significant problem with his short-term memory.  Part of his poor memory stemmed from difficulties in maintaining attention and concentration.  The other aspect was that he forgot large amounts of the stimuli to be remembered, as well as "remembering" information that was not part of the original message.  In other words, the Veteran distorted and/or confabulated the material during registration.  Problems were also noted in his visual memory.  The Veteran compensated for his poor memory by using an electronics organizer and writing information down.  The Veteran had many areas of intact neuropsychological functioning, such as math, visual spatial, and visual constructional.  Dr. B. recommended that the Veteran take a reduced course load in order to ensure adequate time to assimilate the course content due to memory impairments.   

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2011.  At that time, he stated that he started to experience short-term memory loss after he received an Anthrax vaccination.  He indicated that due to his memory loss, he had to rely on his Palm Pilot to help him remember tasks and maintain a daily record of what he needed to do, including reminding himself of appointments and dates.     

In May 2012, the Veteran underwent a VA psychiatric evaluation that was conducted by a licensed psychologist.  At that time, the examiner stated that he had reviewed the Veteran's claims file.  According to the Veteran, he believed that his memory difficulties started in 2000 when he got Anthrax vaccines.  According to the Veteran, his memory problems gradually worsened over time and he found himself more and more forgetful.  He started using an electronic organizer device regularly.  The Veteran noted that the types of things he forgot included events requiring prospective memory such as appointments or things he needed to do.  He denied any head injuries.  In addition, he denied experiencing long periods of time that he had no memory for.  He also denied being told by anyone that he engaged in some behavior or act that he did not remember or that he acted as if he had lost touch with reality.  After the Veteran got out of the Air Force, he took one year off and then went to college for one year.  In 2007, he went to the police academy and graduated in 2008.  The Veteran then worked at the Houston Police Department and did patrol from 2008 to 2011.  In 2010, the Veteran worked six jobs including being a policeman and a security officer.  Since 2011, he had worked as a burglary and theft investigator at the police department.  In regard to whether the Veteran had experienced any serious mental health problems, the Veteran stated that he felt emotional and "maybe depressed" in 2010 when he was going through his second divorce.  

Upon mental status evaluation, the Veteran's memory and attention screening revealed no concerns.  The examiner indicated that the Veteran did not demonstrate impairment in memory for recent and past events.  The Veteran did demonstrate some potential distractibility and a rapid rate of speech and though processes.  He presented as a highly competent individual with a detail-intensive occupation and numerous potential family stressors.  The Veteran also presented with very good coping skills for managing his time and information.  He used an electronic organizer.  The Veteran denied any and all current mental health symptoms including symptoms of anxiety, depression, mania, and psychosis.  

Following the mental status evaluation, the examiner indicated the Veteran did not have a mental disorder diagnosis.  The examiner stated that the Veteran did not meet the criteria for any Axis I psychiatric diagnosis that could cause the mild short-term memory difficulty he reported.  The Veteran did not report symptoms of an anxiety disorder.  According to the examiner, the Veteran did not meet the criteria for amnestic disorder.  An amnestic disorder entailed a serious and obvious deficit in memory that was obvious to others.  People with amnestic disorders were often disoriented with respect to time and space.  The Veteran's symptoms were most consistent with problems of attention and concentration.  However, a diagnosis of attention deficit hyperactivity disorder requires evidence that there is a significant impairment in social, academic, or occupational functioning.  The Veteran, however, was very high functioning and had an excellent employment record in a detail-intensive occupation.  Therefore, he did not meet the criteria for attention and concentration problems that would be considered a mental disorder.  Further, the examiner stated that she was not qualified to determine whether Anthrax vaccines could cause mild memory loss.  It was recommended to the Veteran that if he experienced ongoing and serious memory or other cognitive problems, that he would need neurological examination of brain structure and function.  The examiner stated though, that she did not include standarized full tests of intellectual functioning, memory, or attention.  Those tests could only be conducted by a credentialed neuropsychologist.  However, the examiner did not recommend neuropsychological testing because there was not significant impairment in social, academic, or occupational functioning.  According to the examiner, the Veteran was functioning very well.        

C.  Analysis

The Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, shows that he served in the Air Force from July 1999 to July 2005, with two months of foreign service.  He received the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal.  These medals generally indicate service in the area and time period referenced under 38 C.F.R. § 3.317.  In addition, his service treatment records show that in October 2001 he underwent a post-deployment health assessment.  It was noted that he had been in Kuwait from August to October 2001.

This evidence confirms he served in Southwest Asia during the Persian Gulf War.  Thus, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.

Based on review of the evidence, however, the Board concludes that the preponderance of the evidence weighs against this claim.  The record does not establish he has a chronic disability manifested by memory loss, including on account of undiagnosed illness.  According to him, he first experienced memory loss during service after receiving his Anthrax vaccinations.  He states that his memory loss continued after his discharge.  It is his contention that he currently has a disability manifested by memory loss that is related to his period of service, specifically to his Anthrax vaccinations in service.

He does not have an undiagnosed illness or qualifying chronic disability to which his claimed symptoms have been attributed.  He is not shown to have a current qualifying chronic disability due to undiagnosed illness.

He is competent to describe the memory loss he experiences, and the Board accepts his statements as credible.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007).  He is competent to give evidence about observable symptoms such as experiencing memory loss.  See Layno, 6 Vet. App. at 465; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.").  However, he is not competent to give an opinion as to whether he has a chronic disability manifested by memory loss due Anthrax vaccinations and/or an undiagnosed illness that is not attributable to any known clinical diagnosis pursuant to 38 C.F.R. § 3.317, as these issues involve highly complex medical questions concerning an internal physical process.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009).  Determining the etiology of complex medical conditions requires medical training and would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins).  Here, the Veteran's lay opinion that he has a disability manifested by memory loss due to Anthrax vaccinations and/or an undiagnosed illness is not competent evidence and cannot be considered as evidence favorable to his claim.

The Board recognizes that in April 2005, prior to his separation from the military, he stated that he had experienced memory degradation.  In addition, current VA and private examination reports also note complaints of memory loss.  But the medical evidence on the whole does not show that any reported memory loss is a manifestation of an undiagnosed illness or medically unexplained chronic 
multi-symptoms illness.  See 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317.


There are discrepancies in the medical opinions of record as to whether the Veteran currently has a psychiatric disability.  In the February 2006 private neuropsychological evaluation, Dr. B., a licensed psychologist, diagnosed the Veteran with ADHD and amnestic disorder.  However, during the more recent May 2012 VA examination, the examiner, also a licensed psychologist, specifically concluded the Veteran did not meet the diagnostic criteria for ADHD or amnestic disorder.  The examiner explained that a diagnosis of ADHD required evidence that there was a significant impairment in social, academic, or occupational functioning, and the Veteran, in comparison, was very high functioning and had an excellent employment record in a detail-intensive occupation.  Moreover, he did not meet the diagnostic criteria for amnestic disorder.  An amnestic disorder, explained the VA examiner, entailed a serious and obvious deficit in memory that was obvious to others.  In addition, people with amnestic disorders were often disoriented to time and space.  This, too, did not apply to the Veteran.

The Board resultantly accords minimal, if any, probative weight to the diagnoses of ADHD and amnestic disorder, particularly given the contrary explanation of why the Veteran does not have these disorders.  See Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the responsibility of the BVA . . . to assess the credibility and weight to be given the evidence.")  While the Board may not ignore a medical opinion, it is certainly free to discount the probative value of a physician's statement, so long as there are adequate reasons or bases.  See Sanden v. Derwinski, 2 Vet. App. 97 (1992).  In the February 2006 private evaluation report, Dr. B. stated the Veteran met the diagnostic criteria for ADHD because his mind often wandered and he had problems with attention and concentration.  But this commenting doctor did not address the other relevant diagnostic criteria noted by the VA examiner in the May 2012 VA examination report that ADHD required evidence of significant impairment in social, academic, or occupational functioning.  In this regard, Dr. B. actually noted the Veteran had very good social skills and got along with a wide variety of people.  In addition, although Dr. B. diagnosed the Veteran with amnestic disorder, he did not discuss how the Veteran met the diagnostic criteria for this disorder either.  Specifically, he did not address the criteria noted by the VA examiner in the May 2012 VA examination report that an amnestic disorder entailed a serious and obvious deficit in memory that was obvious to others.  The VA examiner had discussed how the Veteran denied being told by anyone that he engaged in some behavior or act that he did not remember.  In addition, the examiner noted that people with amnestic disorders were often disoriented to time and space.  There is no evidence of record suggesting the Veteran has been disoriented to time and space.  Dr. B., the private examiner, did not discuss this pertinent criterion noted by the VA examiner.  Thus, his report is inadequate to establish diagnoses of ADHD and/or amnestic disorder.  

In contrast, the Board attaches significant probative weight to the conclusion reached by the examiner from the Veteran's May 2012 VA examination.  He discussed the pertinent criteria for diagnoses of ADHD and/ or amnestic disorder and explained why the Veteran did not meet these criteria.  In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that clinicians are presumed to know the criteria required of a diagnosis, so a diagnosis is presumed to be in accordance with the criteria of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM).  But this does not preclude the Board from favoring one doctor's diagnosis over another's or, as here, ultimately accepting one doctor's conclusion that the Veteran does not in actuality have the claimed disorder versus another doctor believing he does.

The Board recognizes that Dr. B. stated that, based on tests for memory, the Veteran had poor short-term memory.  To the extent that Dr. B. linked the Veteran's memory loss to the diagnosis of ADHD and/or the diagnosis of amnestic disorder, given that the Board finds that the Veteran does not have ADHD and/or amnestic disorder, the Board does not afford such evidence linking the Veteran's memory loss to a diagnosis of ADHD and/or amnestic disorder any weight.

In the May 2012 VA examination report, the examiner specifically stated that the Veteran's memory and attention screening revealed no concerns.  The examiner also concluded the Veteran did not meet the diagnostic criteria for any Axis I psychiatric disorder that could cause the mild short-term memory difficulty he reported.  In fact, he also did not have a mental disorder diagnosis.  Specifically, the examiner indicated the Veteran did not report symptoms of anxiety.  However, the Board recognizes that, in September 2005, a few months after his discharge from service, the Veteran had a VA examination and was diagnosed with an anxiety disorder.  Nevertheless, to the extent he had an anxiety disorder in September 2005, such disorder was not linked to his period of active military service, to include the complaint in service of memory degradation, or otherwise to his claimed memory loss.  The examiner specifically stated that, during the interview, the Veteran's memory was well preserved for both recent and remote events, and therefore was within normal limits.  Thus, although the Veteran had subjective complaints of memory loss, there were no objective findings of a disability manifested by memory loss due to an undiagnosed illness.

The medical evidence does not attribute the Veteran's current symptomatology of memory loss to an undiagnosed illness related to his Persian Gulf War service, including especially to any Anthrax vaccinations.  In light of the foregoing, the Board finds that service connection based on the provisions that contemplate qualifying chronic disability due to undiagnosed illness is unwarranted.

The Board has considered whether service connection is warranted on a direct basis. However, memory loss is not shown to be attributable to a diagnosed disability that was incurred in service.  The Board recognizes that, in April 2005, approximately three months prior to his discharge, the Veteran stated that he had experienced memory problems during service - although he admittedly had not sought any treatment for such problems.  Nevertheless, an actual disorder productive of memory problems was not diagnosed during his active service.  In addition, at present, although he has subjective complaints of memory loss, there is no objective evidence of a disability related to his complaints of memory loss. 

Current medical evidence indicates he does not have a disability manifested by memory loss.  Thus, service connection is not warranted on a direct basis.  See 38 U.S.C.A. § 1110; Degmetich v. Brown, 104 F. 3d 1328 (1997). 

The Board also has considered whether service connection may be granted for the Veteran's memory loss regardless of the inapplicability of the undiagnosed illness provisions.  See Combee, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  However, service connection is not available for symptoms.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted).  The memory loss the Veteran reports is not a disability in and of itself.  Id.  Because the symptom of memory loss does not constitute an independently ratable disability, service connection for it cannot be granted on any basis to include as secondary to his Anthrax vaccinations in service.  38 C.F.R. § 3.303.  The Board realizes he received Anthrax vaccinations during his service, in anticipation of his service during the Persian Gulf War.  In addition, the Board also realizes he has subjective complaints of memory loss.  But without a diagnosed underlying disability that is manifested by memory loss, and a link between the Anthrax vaccinations in service and such underlying disability, service connection cannot be granted.

Based on the evidence of record, the Board finds that there is a preponderance of evidence against the claim for service connection for a chronic disability manifested by memory loss, to include as due to an undiagnosed illness.  As the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable, and this claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


III.  Claims for Higher Initial Ratings from July 14, 2005 to January 11, 2010

A.  Pertinent Laws and Regulations

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2012), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).

In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31 (2012).

Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).

The Court has considered the question of functional loss as it relates to the adequacy of assigned disability ratings.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In DeLuca, the Court held that it is not enough for an examiner to state a range of motion.  Rather, 38 C.F.R. § 4.40 requires consideration of factors such as lack of normal endurance, function loss due to pain, and pain on use, including pain during flare-ups.  The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination.  Moreover, the Court stated that there must be a full description of the effects of the disability on the veteran's ordinary activity.  38 C.F.R. § 4.10.



B.  Left Shoulder Disability

Factual Background

The Veteran's service treatment records show that in March 2005, the Veteran was treated for chronic left shoulder pain with grinding sensation.  In the past, there had been no improvement with conservative treatment.  He had occasional paresthesias of the left arm.  The symptoms had been present since an injury in basic training six years ago.   Upon physical examination, he had full range of motion of the left shoulder.  He was tender to palpation at the superior aspect of the shoulder.  The Veteran had pain with abduction against resistance.  The assessment was joint pain localized in the shoulder.  In April 2005, he had a magnetic resonance imaging (MRI) taken of his left shoulder.  The MRI was reported to be unremarkable.      

In July 2005, the Veteran filed a claim for entitlement to service connection for a left shoulder disability.  

In August 2005, the Veteran underwent a VA examination.  At that time, the examiner stated that the Veteran had injured his left shoulder during basic training.  Following the injury, the Veteran experienced chronic left shoulder pain with grinding and popping.  The left shoulder condition did not cause incapacitation.  The current treatment was anti-inflammatory medicine.  The Veteran could not lay on his left side.  The left shoulder condition did not result in any time lost from work.  

The physical examination showed that the general appearance of the left shoulder was abnormal with findings of grinding and popping on examination.  In regard to range of motion of the left shoulder, flexion was to 180 degrees, abduction was to 180 degrees, external rotation was to 90 degrees, and internal rotation was to 90 degrees.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  X-rays of the left shoulder were reported to be within normal limits.  Following the physical examination and a review of the Veteran's x-rays, the examiner diagnosed the Veteran with left shoulder trauma with strain and instability.  The effect of the condition on the Veteran's usual occupation was none.  The effect of the condition on the Veteran's daily activities is that according to the Veteran, he could not exercise due to his left shoulder pain.  

In a November 2005 rating action, the RO granted service connection for left shoulder trauma with strain and instability.  The RO assigned a noncompensable disability rating under Diagnostic Code 5010, effective from July 14, 2005.  See 38 C.F.R. § 3.400(b)(2) (the effective date of an award of service connection will be the day following the date of separation from service-if the veteran filed a claim within one year after service).

A VA examination was conducted in July 2008.  At that time, the Veteran stated that he worked for the Houston police department.  In regard to his left shoulder, he indicated that he had a grinding feeling and pain with movement of the shoulder.  The examiner noted that what the Veteran was talking about had nothing to do with his shoulder joint but had to do with his scapula.  The Veteran had a congenital snapping scapula.  The examiner reported that the Veteran did get pain in the shoulder itself.  The Veteran did not take any medication for the left shoulder pain.  Daily activities were affected in that he had pain with movement but only with some movements.  He also did not pick up very heavy objects.  Employment was not really affected.      

The physical examination showed that the Veteran had no tenderness or swelling in any aspect of the left shoulder.  Forward flexion was to 180 degrees; abduction was to 180 degrees; internal rotation was to 90 degrees; and external rotation was to 90 degrees.  Repeat flexion, abduction, internal, and external rotation of the shoulder produced no indication of pain, weakness, or fatigue.  He had no indication of subluxation or dislocation.  X-rays of his left shoulder were reported to be normal.  The assessment was normal left shoulder joint.   

Private medical records show that on January 12, 2010, the Veteran underwent a physical examination.  At that time, he stated that he had left shoulder pain that had been bothering him for many years.  He denied any neck pain or any radiating pain down his upper extremity.  He also denied any numbness, tingling, or any weakness.  The physical examination showed that he had full range of motion of his left shoulder with no pain.  He had some crepitus in the periscapular region with range of motion.  The Veteran had no pain on empty-can testing.  Strength was 5/5.  There was no pain with resisted internal or external rotation.  Hawkins and Neer tests were negative.  Negative crossover test of the acromioclavicular (AC) joint.  The Veteran had exquisite tenderness over the periscapular region.  He was neurovascularly intact distally.  X-rays of the left shoulder were reported to show no abnormalities.  The assessment was chronic left periscapular strain.  

In an October 2010 rating action, the RO increased the disability rating for the service-connected left shoulder disability from noncompensable to 10 percent disabling under Diagnostic Code 5299-5203, effective from January 12, 2010, the date the private treatment records showed increased symptoms for the left shoulder disability.  Specifically, the private treatment records showed that on a physical examination conducted on January 12, 2010, there was objective evidence of exquisite tenderness over the periscapular region.  There was no objective evidence of pain or other ratable symptoms noted prior to that date.  

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2011.  He stated that he developed left shoulder pain during service and that it continued after his discharge.  According to the Veteran, the level of pain in his left shoulder had been consistent throughout his appeal.

Analysis

As the Veteran has taken issue with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  See Fenderson, 12 Vet. App. at 119, 126-27.  As explained in the Introduction, the RO has assigned "staged" ratings for the Veteran's service-connected left shoulder disability; a noncompensable rating from July 14, 2005 to January 11, 2010, and a 10 percent rating on and after January 12, 2010.  The Veteran is satisfied with his 10 percent disability rating for his left shoulder disability.  However, he maintains that he is entitled to the 10 percent rating effective from the date of grant of service connection on July 14, 2005.  He contends that his left shoulder disability was as severe then as it is now.  In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event.  However, symptoms must be viewed in conjunction with the objective medical evidence of record.

The RO initially rated the Veteran's left shoulder disability under Diagnostic Code 5010.  Arthritis due to trauma under Diagnostic Code 5010 substantiated by x-ray findings is rated as degenerative arthritis under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).  Under Diagnostic Code 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, with a minimum rating of 10 percent to be assigned for each major joint affected.  38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.   

Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203.  Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.  Lifting the arm to shoulder level is lifting it to 90 degrees.  See 38 C.F.R. § 4.71, Plate I.

Diagnostic Code 5201 provides that limitation of motion of the minor arm at shoulder level warrants a 20 percent disability rating.  Limitation of motion of the minor arm midway between the side and shoulder level warrants a 20 percent disability rating.  Limitation of motion of the minor arm to 25 degrees from the side warrants a maximum 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5201.

In this case, there is a preponderance of evidence against the Veteran's claim for an initial compensable rating for his left shoulder strain from July 14, 2005 to January 11, 2010.  In this regard, the Board notes that a compensable rating under Diagnostic Code 5201 requires limitation of motion of the arm to the shoulder level, to midway between the side and shoulder level, or to 25 degrees from the side.  The record contains no evidence of any such limitation of motion.  In the August 2005 and July 2008 VA examinations, the Veteran had full range of motion of the left shoulder.  Thus, the Veteran is not entitled to an initial compensable rating under Diagnostic Code 5201 from July 14, 2005 to January 11, 2010.  

The Board has considered 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca (which actually addressed the issue of a service connected shoulder problem), supra.  However, there is a preponderance of evidence against a finding that the Veteran has any additional limitation of motion of the left shoulder or arm due to pain or flare-ups of pain, supported by objective findings, to a degree that would support a compensable rating (i.e., limitation of motion of the arm that more nearly approximates 90 degrees or the arm motion limited to the shoulder level), nor is there medical evidence of fatigability, weakness, or incoordination that results in such additional limitation of motion of the left arm.

In this regard, the Board recognizes that in the August 2005 VA examination, the examiner stated that there were findings of grinding and popping on examination.  Nevertheless, the Veteran still had full range of motion and the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The Board also notes that in the July 2008 VA examination, the examiner explained that the findings of grinding had nothing to do with the Veteran's left shoulder joint but had to do with his scapula.  The Veteran had a congenital snapping scapula.  Moreover, upon physical examination, there was no tenderness or swelling in any aspect of the left shoulder.  The Veteran had full range of motion and repeat flexion, abduction, internal, and external rotation of the shoulder produced no indication of pain, weakness, or fatigue.  He also had no indication of subluxation or dislocation.  Thus, even when pain and other symptoms are accounted for there was no indication of functional limitation of the left arm at shoulder level.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.   

The Board recognizes that the RO evaluated the Veteran's left shoulder disability under Diagnostic Code 5010 for degenerative or traumatic arthritis.  However, in this case, there is no evidence that the left shoulder joint is manifested by arthritis. In fact, x-rays taken of the Veteran's left shoulder at the time of the August 2005 and July 2008 VA examinations were reported to be normal.  Therefore, an initial compensable rating for the left shoulder strain from July 14, 2005 to January 11, 2010, under Diagnostic Code 5010 is not warranted.  

The Board has considered whether other Diagnostic Codes might allow for a compensable disability rating.  The only other Diagnostic Codes available for rating the shoulder and arm are Diagnostic Codes 5200 through 5203.  Any evaluation under Diagnostic Code 5200 requires ankylosis of the scapulohumeral articulation, which was not shown by the evidence of record.  A rating under Diagnostic Code 5202 is not warranted because it relates to disabilities of the humerus, which are not shown in the evidence of record.  Under Diagnostic Code 5203, a compensable rating requires either malunion of the clavicle or scapula, or nonunion of the clavicle or scapula without loose movement.  Service connection is not in effect for such bony abnormalities and, in any event, neither of these is shown by the evidence of record.  

The Board recognizes that the Veteran can attest to experiencing pain in his shoulder.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He maintains that he has experienced the same level of pain throughout this appeal.  However, the Board notes that it was not until January 12, 2010, when the private medical records showed that the Veteran had exquisite tenderness over the periscapular region, that there was objective evidence of the Veteran's left shoulder pain.  Prior to that date, although the Veteran had complaints of pain, the physical examinations were negative for any objective evidence of left shoulder pain and specifically showed that the Veteran did not have pain with range of motion.  Thus, during the period of time from July 14, 2005 to January 11, 2010, the evidence of record did not reflect that the Veteran's complaints of pain resulted in functional impairment of such severity so as to warrant a compensable rating for his left shoulder.  A compensable rating is not warranted as there is no medical evidence of limitation of motion of the left arm to the shoulder level, to midway between the side and shoulder level, or to 25 degrees from the side, during the period of time from July 14, 2005 to January 11, 2010.  Therefore, the Board finds that the Veteran is not entitled to a compensable rating for his service- connected left shoulder strain during the aforementioned period of time.  See Fenderson, 12 Vet. App. at 119.

In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since there is a preponderance of evidence against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

C.  Bilateral (Right and Left) Knee Disability

Factual Background

The Veteran's service treatment records show that in March 2005, the Veteran was treated for bilateral knee pain for more than one year.  He had undergone physical therapy and activity restriction without significant improvement.  There was popping and tenderness along the medial joint line, bilaterally.  X-rays of the knees were within normal limits.  There were no paresthesias.  There was intermittent giving out but no locking.  Upon physical examination, there was full range of motion of the knees.  The assessment was of joint pain localized in the knees.  He subsequently had MRI's taken of his knees.  The MRI of his right knee was reported to show small joint effusion, the etiology of which was not clear.  There were no focal internal derangements of the right knee, and there was probably a small developing popliteal cyst.  The MRI of the left knee was reported to show a multilobulated mass along the posteromedial aspect of the knee with some extension into the medial head of the gastrocnemius tendon.  Its appearance was most suggestive of a probable ganglion cyst.       

In July 2005, the Veteran filed a claim for entitlement to service connection for bilateral knee disabilities.  

In August 2005, the Veteran underwent a VA examination.  At that time, he stated that he had experienced a bilateral knee condition for five years.  The condition was not due to an injury; it occurred during service.  The symptoms of the condition were constant bilateral knee pain, inability to run, and bilateral knee grinding and popping.  The condition did not cause incapacitation.  The current treatment was anti-inflammatory medicine which he took once a day.  Due to his bilateral knee condition, the Veteran could not run, stand, or sit for long periods of time.  The condition did not result in any time lost from work.  

The physical examination showed that the Veteran's posture and gait were within normal limits.  The general appearance of the bilateral knee joints was within normal limits.  The range of motion of the right and left knee joints was as follows: flexion was to 140 degrees and extension was to 0 degrees.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  The Drawer test and McMurray's test were within normal limits, bilaterally.  X-rays of the bilateral knees were reported to be within normal limits.  Following the physical examination and a review of the x-rays, the examiner diagnosed the Veteran with bilateral knee strain.  The subjective factors were that according to the Veteran, his knees hurt and prevented him from running.  The objective factors were none.  The examination and x-rays were normal.  The effect of the condition on the Veteran's usual occupation was none.  The effect of the condition on the Veteran's daily activities is that according to the Veteran, he could not exercise due to his bilateral knee pain.  

In a November 2005 rating action, the RO granted service connection for right knee strain and assigned a noncompensable disability rating under Diagnostic Code 5260, effective from July 14, 2005.  See 38 C.F.R. § 3.400(b)(2).  The RO also granted service connection for left knee strain and assigned a noncompensable disability rating under Diagnostic Code 5257, effective from July 14, 2005.  Id.    

A VA examination was conducted in July 2008.  At that time, the Veteran stated that he worked for the Houston police department.  In regard to his knees, he indicated that he had pain in his knees with prolonged walking.  He denied any swelling.  The Veteran reported that his knees felt weak but there was no instability or locking.  He did not take any medications for the knees and he denied any flare-ups.  Daily activities were affected in limited walking distances.  Although he experienced pain in his knees with prolonged standing, such did not affect his employment.    

The physical examination showed that the Veteran's knees were anatomically normal.   There was no tenderness or swelling around the patella.  He had no tenderness or swelling around the medial or lateral aspect of the joint.  The Veteran had no Baker's cyst or tenderness to the posterior aspect of the joint.  Flexion was to 140 degrees and extension was to 0 degrees, bilaterally.  Repeat flexion and extension of the knees produced no indication of pain, weakness, or fatigue.  Lateral and medial stress of the knee showed no laxity of the lateral or medial collateral ligaments.  He had a negative anterior posterior drawer sign which indicated intact anterior posterior cruciate ligaments.  He had a negative McMurray's sign.  The Veteran walked without indication of a limp.  X-rays of the knees were reported to be normal.  The assessment was normal bilateral knees.  

Private medical records show that on January 12, 2010, the Veteran underwent a physical examination.  He stated that he had bilateral knee pain which was aggravated by cold, squatting, kneeling, and prolonged walking.  He denied any locking or giving way.  The physical examination showed that both knees had normal contour and alignment.  He had full range of motion.  There was a little bit of patellar crepitus, more so on the right than the left.  He had some pain with patella subluxation.  There was no lateral or medial joint line tenderness in either knee.  There was no collateral instability.  Lachman and pivot-shift tests were negative.  X-rays taken of the Veteran's knees were reported to be negative.  The impression was that the Veteran's subjective symptoms confirmed chondromalacia patellae, bilateral.     

In an October 2010 rating action, the RO increased the disability ratings for the service-connected right knee disability and left knee disability from noncompensable to 10 percent disabling under Diagnostic Code 5260, effective from January 12, 2010, the date the private treatment records showed increased symptoms for the bilateral knee disabilities.  Specifically, the private treatment records showed that on a physical examination conducted on January 12, 2010, there was objective evidence of some pain with patella subluxation in both knees.  There was no objective evidence of pain or other ratable symptoms noted prior to that date.  

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2011.  He stated that he developed bilateral knee pain during service and that it continued after his discharge.  According to the Veteran, the level of pain had been consistent throughout his appeal.    

Analysis

As the Veteran has taken issue with the initial ratings assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  See Fenderson, 12 Vet. App. at 119, 126-27.  As explained in the Introduction, the RO has assigned "staged" ratings for the Veteran's service-connected bilateral knee disabilities; a noncompensable rating from July 14, 2005 to January 11, 2010, and a 10 percent rating on and after January 12, 2010.  The Veteran is satisfied with his 10 percent disability ratings for his bilateral knee disabilities.  However, he maintains that he is entitled to the 10 percent ratings effective from the date of grant of service connection on July 14, 2005.  He contends that his bilateral knee disabilities were as severe then as they are now.  In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event.  However, symptoms must be viewed in conjunction with the objective medical evidence of record.

Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee.  See 38 C.F.R. § 4.71a.  A noncompensable rating is warranted when leg flexion is limited to 60 degrees.  A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees.

Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee.  See 38 C.F.R. § 4.71a.  A noncompensable rating is warranted when leg extension is limited to 5 degrees.  A 10 percent rating is warranted when it is limited to 10 degrees, a 20 percent rating is warranted when it is limited to 15 degrees, a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a 50 percent rating requires extension limited to 45 degrees.

38 C.F.R. § 4.71, Plate II, shows that normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.

It is possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for disability of the same joint.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).

VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) also provide guidance on when separate ratings for knee disability may be assigned for arthritis and associated limitation of motion (DC 5003, etc.) in addition to for subluxation/instability under DC 5257 or under DC 5258-9 for cartilage impairment.  Essentially, these opinions indicate separate compensable ratings may be assigned when reported limitation of knee motion shown is compensable or when there is X-ray evidence of arthritis together with a finding of painful motion.  This is because, in applying DC 5003, the Court held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), 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 DC 5003, even though there is no actual limitation of motion."  See also 38 C.F.R. § 4.59. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition, else this would violate VA's anti-pyramiding regulation, 38 C.F.R. § 4.14.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

DC 5257 concerns "other" knee impairment, including recurrent subluxation or lateral instability.  A 10 percent rating is warranted for "slight" consequent knee disability.  A 20 percent rating is warranted for moderate knee disability.  And a 30 percent rating is warranted for severe knee disability.
These descriptive words "slight," "moderate," and "severe" as used in this DC are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.

In considering the applicability of other diagnostic codes that may also be separately rated, the Board notes that Diagnostic Codes 5258-9, which concerns injury to cartilage of the knee.  Under Diagnostic Code 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage.  Under Diagnostic Code 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  The General Counsel has suggested in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve symptomatology caused by tears and displacements of the menisci that may be rated separately from symptoms caused by arthritis.

Here, for the period of time at issue from July 14, 2005 to January 11, 2010, the evidence of record does not demonstrate the degree of disability for which an initial compensable evaluation is warranted for either knee.  In this regard, the range of motion of each knee does not support a compensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261.  As set forth above, a 10 percent rating under Diagnostic Code 5260 requires that flexion be limited to at least 45 degrees.  A 10 percent rating under Diagnostic Code 5261 requires that extension be limited to 10 degrees.  Upon the Veteran's August 2005 and July 2008 VA examinations, range of motion of each knee was from 0 to 140 degrees, so entirely normal.  See 38 C.F.R. § 4.71, Plate II.  In addition, there was no change in motion upon repetitive or resisted testing of his knees, and no additional limitation was noted of the type contemplated by DeLuca.  Therefore, based on the rating schedule, and even with consideration of his complaints of pain, a compensable rating for each knee under either Diagnostic Code 5260 or 5261 is not warranted from July 14, 2005 to January 11, 2010.  See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (pain may cause functional loss, but does not in and of itself constitute functional loss, rather, must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40).  See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (requiring consideration of whether there is painful motion and consequent functional impairment under 38 C.F.R. § 4.59 even when the Veteran does not have arthritis).

There is no X-ray confirmation of arthritis affecting either knee, hence, no basis for applying DC 5003, including on referral from DC 5010.  In the August 2005 and July 2008 VA examination reports, it was specifically indicated that X-rays of the Veteran's knees were negative.

Moreover, separate ratings are not warranted under VAOPGCPREC 9-2004 because there is no compensable loss of flexion or extension of either knee.

Other Diagnostic Codes applicable to the Veteran's bilateral knee disability also have been considered by the Board for the period of time at issue from July 14, 2005 to January 11, 2010.  Diagnostic Code 5257 as mentioned is used to rate "other" knee disability, including recurrent subluxation or lateral instability.  However, in this case, there is no evidence of record, including any evidence between July 14, 2005 to January 11, 2010, which shows any findings of instability or subluxation of either knee.  During the August 2005 VA examination, the Drawer's and McMurray's tests were unremarkable.  In addition, during the July 2008 VA examination, McMurray's sign again was negative.  Therefore, since the medical evidence does not show recurrent subluxation or lateral instability, there is no basis for a compensable rating under Diagnostic Code 5257 for the period of time from July 14, 2005 to January 11, 2010, for either knee.

Because the Veteran does not have subluxation or lateral instability of either knee, or arthritis, he necessarily cannot receive separate ratings for this under DCs 5257 and 5003, respectively, although provided for in VAOGCPRECs 23-97 and 9-98.


There equally is no indication of ankylosis, dislocation of semilunar cartilage, or impairment of the tibia and fibula to invoke consideration of Diagnostic Codes 5256, 5258, or 5262 during the period of time at issue from July 14, 2005 to 
January 11, 2010.  Ankylosis, incidentally, is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because the Veteran has retained entirely normal range of motion of his knees on both flexion and extension, indeed, even despite his complaints of pain, his knees by definition are not ankylosed, to the contrary, far from it.

The Board recognizes the Veteran can attest to experiencing pain in his knees.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He maintains that he has experienced the same level of pain throughout this appeal.  However, it was not until January 12, 2010, when the private medical records showed he had bilateral patellar crepitus and pain with patella subluxation.  This was the first objective evidence of his bilateral knee pain.  Prior to that date, although he had complaints of pain, the physical examinations were unremarkable for any objective evidence of pain in either knee and specifically revealed he did not have pain to the point of reducing his range of motion.  Thus, during the period of time from July 14, 2005 to January 11, 2010, the evidence of record did not show his complaints of pain resulted in any actual functional impairment of such severity so as to warrant a compensable rating for either knee.

Consequently, the Board finds that from July 14, 2005 to January 11, 2010, there is no diagnostic code providing a basis for assigning a higher (compensable) rating for either knee.  Thus, the Board concludes that the preponderance of the evidence is against the claim for an initial compensable rating for right knee strain from July 14, 2005 to January 11, 2010.  The Board also concludes that the preponderance of the evidence is against the claim for an initial compensable rating for left knee strain from July 14, 2005 to January 11, 2010.  As there is a preponderance of evidence against these claims, the benefit-of-the-doubt doctrine does not apply, and these claims resultantly must be denied.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV. Extra-schedular Consideration

In considering the claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  In a rather recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.


Here, the symptoms associated with the Veteran's left shoulder, right knee, and left knee disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, so the Board finds that the rating criteria reasonably describe his disabilities.  His primary complaint is of chronic pain, and, as explained, the effect of this pain is considered in the rating criteria, especially its effect, as an example, on his range of motion.  Thus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluations for the period of time from July 14, 2005 to January 11, 2010, are, therefore, adequate.  Therefore, referral for consideration of an extraschedular rating is unwarranted.


ORDER

The claim of entitlement to service connection for a chronic disability manifested by memory loss, including due to undiagnosed illness, is denied.

The claims for initial compensable disability ratings from July 14, 2005 to January 11, 2010, for the left shoulder trauma with strain and instability, right knee strain, and left knee strain, also are denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs