Citation Nr: 1309779 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-05 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an increased rating greater than 10 percent for a right knee disability, to include iliotibial tendonitis. 2. Entitlement to an increased rating greater than 10 percent for a left knee disability, to include iliotibial tendonitis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1975 to July 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The case was remanded in March 2009 and in January 2011. The Board received additional evidence from the Veteran after the case was certified to the Board, but the representative, in the January 2013 informal hearing presentation, waived initial RO review of that evidence. As noted in the prior remand, the issues of entitlement to service connection for a dental condition and wrist conditions have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right knee disability causes no impairment of extension; flexion is limited to 80 degrees at worse; there are symptoms associated with the removal of the semilunar cartilage; and there is no lateral instability or subluxation. 2. The Veteran's left knee disability causes no impairment of extension; flexion is limited to 80 degrees at worse; there is no more than moderate lateral instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee disability, based on impairment of flexion, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5024-5260 (2012). 2. The criteria for a separate rating of 10 percent for right knee disability, based on symptomatic removal of the semilunar cartilage, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2012). 3. The rating criteria for a rating in excess of 10 percent for left knee disability, based on impairment of flexion, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5024-5260 (2012). 4. The rating criteria for a separate rating of 20 percent for left knee disability, based on moderate lateral instability or subluxation, are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.59, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. 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, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an 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). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Nonetheless, the Board notes that, in a BLANK letter, the Veteran was informed of the diagnostic codes that the disability may be rated under, and was notified that he may submit evidence regarding the impact of his disability on his employment and daily life. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The Board remanded this case for a new VA examination which was conducted in June 2011. This VA examination report is thorough and supported by the record. This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining this additional medical comment as well as additional VA and private medical records, the Board is satisfied there was compliance with the prior January 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Historically, in an August 2005 rating decision, service connection for bilateral iliotibial tendinitis was granted and assigned a 10 percent rating effective September 21, 2004, under Diagnostic Code 5024-5260. In February 2007, the Veteran submitted medical literature evidence which included a section addressing knee pain, describing symptoms. The Veteran also submitted a February 2007 statement of Dr. C.T.P. of Cedar Valley Medical Specialists which indicated that the Veteran had symptoms related to his knee arthritis, but did not state the nature of the symptoms. The RO apparently accepted this correspondence as a claim for an increased rating for the service-connected knee disabilities and/or considered the claim for an increased rating for the knees as part of the pending TDIU claim. During that time frame, the Veteran was examined by VA in May 2006. At that time, the Veteran reported that his knees gave out of him and felt loose. He related that his left knee was worse than his right knee. He reported that he could only walk short distances. He also felt popping in his right knee joints which happened a couple of times per week and was more common with more activity. He stated that the pain was constant. On physical examination, he could straighten fully and was able to flex to 120 degrees with complaints of pain at the end of the degrees. There was no lateral instability. Anterior stress resulted in a Drawer test of approximately 2 millimeter which was within normal limits. There was no instability, redness, or effusion. The knees were nontender. X-rays did not show evidence of significant degeneration. The Veteran's claim for an increased rating for the knees was denied via a February 2007 rating decision and he appealed. The Veteran thereafter submitted another statement from Dr. P., dated January 2007, which indicated that the Veteran was permanently disabled, but which did not state the reason for that conclusion. Documents were then received from the Social Security Administration (SSA), but they predated the effective date of service connection for the knees. A March 2006 letter of R.E.E., D.C., noted that the Veteran's knee joints were very unstable, swollen, and feverish, which was indicative of having irritation and inflammation. A May 2007 letter of Dr. P. Again stated that the Veteran had symptoms of his knee arthritis, but did not specify the symptoms. Letters dated in 2007 of the Iowa City VA Medical Center pertained to feet disabilities. Subsequent VA medical records show that the Veteran reported that he could barely walk due to his knees in June 2008. He reported knee pain which was 8/10 on a scale of 1-10 with 10 being worse. A magnetic resonance imaging (MRI) was recommended. In an August 2008 letter, Dr. P. stated that the Veteran suffered from osteoarthritis of his knees and an MRI was recommended and approved. In October 2008, the MRI was completed. On the right, there was a tear of the posterior horn of the body of the medial meniscus; an osteochondral injury involving the posterior lateral femoral condyle; and cartilage abnormalities involving the medial and patellofemoral compartments. On the left, there were postoperative changes due to anterior cruciate ligament (ACL) reconstruction with intrasubstance ganglion cyst involving the portion of the graft within the tibial tunnel. Undulation of the intra-articular portion of the graft was nonspecific. In November 2008, a VA examiner discussed possible right knee arthroscopy. A March 2009 letter of R.E.E., D.C., noted that the Veteran's knee joints were very unstable, swollen, and feverish, again indicating irritation and inflammation. Also, in March 2009, Dr. P, stated that the Veteran was permanently disabled, but he did not state why. A letter was received in April 2009 from J.A., a medical social worker, who stated that the Veteran lived in constant pain, including from his knees, and that he could not remain on his feet for more than a short period of time. He also could not sit for a long period of time or do household chores as a result of his back, knees, and feet. J.A. submitted another letter in which she again detailed his pain and stated that the Veteran was on narcotic medication. In addition, a letter was received from the Veteran's sister in which she stated that the Veteran had deteriorated and was in pain. He could only perform simple tasks and did not leave his home on some days. She indicated that routine errands were a major undertaking and she could see his pain by the way that he walked. The Veteran subsequently received treatment at Millennium Therapy. An October 2009 letter noted that the Veteran had repeat bouts of instability resulting in falls, twisting motion of the trunk, and increased low back pain with IT band hypertonicity. Knee pain and instability prevented the therapist from performing effective rehabilitation of the Veteran's low back. Subsequent VA records dated in November 2009 noted that the Veteran had fallen due to left knee instability. In February 2010, the Veteran was afforded a VA examination. At that time, he reported a history of his knees giving way and reported that he used knee braces/immobilizers. He also stated that he used crutches. He indicated that he could not sit or stand for long. He related that his knees popped and snapped. On the left side, the Veteran had crepitus, deformity, tenderness, pain at rest, and guarding of movement. The knee clicked and snapped and the Veteran had medial/lateral as well as anterior/posterior instability which was noted to be moderate in degree. The instability was described in detail. There was also subpatellar tenderness, meniscus abnormality, effusion, dislocation, and there was a meniscus tear. The meniscus was not surgically absent. There was no locking. McMurray's test was positive. On the right side, there was crepitus and guarding of movement. There was crepitation, clicks or snaps, grinding, subpatellar tenderness, meniscus abnormality (it was surgically removed), locking, and effusion. There was no instability or dislocation. Range of motion in both knees was full extension at zero degrees to 90 degrees of flexion. There was no ankylosis. Pain further limited flexion to 80 degrees. X-rays revealed that the left ACL hardware was in a stable position without evidence of hardware complications. Both knees showed mild medial joint space narrowing. There were no joint effusions and there was neutral patellar tracking bilaterally. In April 2011, the Veteran underwent an MRI of the right knee which revealed a degenerative type horizontal oblique tear involving the body and posterior horn of the medial meniscus. There was also a degenerative horizontal tear of the body and posterior horn of the lateral meniscus and chondromalacia of the medial femoral condyle. There was a suggestion of attenuation of the proximal fibers of the ACL near the femur origin, but it was intact. An April 2011 letter from M.J.M., M.D. indicated that the Veteran's prior MRI was reviewed, but this physician was unable to predict whether additional arthroscopic surgery would be of benefit to the Veteran so a non-operative treatment program was recommended. In June 2011, the Veteran was afforded a VA examination. The Veteran reported for the examination in a wheelchair with crutches for ambulation. His gait was slow and guarded, almost overprotective. On the left, the Veteran's knee clicked and snapped and exhibited subpatellar tenderness. There was no grinding or instability or meniscus abnormality. On the right, the Veteran's right knee also clicked or snapped and had subpatellar tenderness as well as effusion. There was no locking or dislocation. There was a surgically absent meniscus. McMurray's test was positive. Range of motion in both knees was full at extension to zero with flexion to 100 degrees. Repetitive motion and pain further limited flexion to 90 degrees. It was noted that the Veteran had taken Vicodan prior to the examination and was unsure of the discussion between the Veteran and the examiner, at times. Additional letters were received from Dr. P. which reflected that the Veteran was being medically treated for various issues, including being medicated for his knees. At this juncture, the Board notes that the Veteran also takes narcotic medication for his low back. An April 2011 letter of R.E.E., D.C., noted that the Veteran had been under his care for years, but addressed only his spine. In another letter, he again reported that the Veteran's knee joints were very unstable, swollen, and feverish, indicative of having irritation and inflammation. In a December 2012 letter, Dr. P. stated that the Veteran had osteoarthritis of the knees. He cited to various disabilities, including the knees, and indicated that the Veteran was unable to work. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71(a), Diagnostic Code 5003. Under Diagnostic Code 5024, tenosynovitis (and the diseases under diagnostic codes 5013 through 5024) will be rated on limitation of motion of affected parts, as degenerative arthritis, except for gout which will be rated under Diagnostic Code 5002. 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. 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 flexion and extension of the knee is from zero degrees to 140 degrees. It is possible to receive separate ratings for limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). VA General Counsel Opinions VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998) provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation/instability or under Diagnostic Code 5258-9 for cartilage impairment. Essentially, these opinions suggest that 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. 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for impairment of the knee with slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for impairment of the knee with moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for impairment of the knee with severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words 'slight,' 'moderate,' and 'severe' as used in this code 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. In this case, there is no ankylosis. Thus, a rating based on ankylosis is not warranted. In addition, the Board has considered the application of other alternative codes, but finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. The Veteran, as noted, has been rated based on limitation of motion/painful motion on flexion. Right Knee At the outset, the Board notes that the Veteran has always demonstrated complete and full extension. Therefore a rating based on impairment of extension is not warranted. With regard to flexion, the Veteran, at worse, has been unable to flex past 80 degrees, taking into consideration the DeLuca factors and limitation caused by repetitive motion. Thus, the Veteran does not have the functional equivalent of flexion limited to 30 degrees such that a higher 20 percent rating is warranted. The Veteran has previously undergone meniscal surgery. Apart from the limitation of motion on flexion, the residuals of the right knee meniscectomy are symptomatic with symptoms such as effusion, crepitation, and a positive McMurray's test, as well as the positive findings on MRI. As Diagnostic Code 5261 does not account for these symptoms, the Veteran is entitled to a separate rating under Diagnostic Code 5259 for symptomatic residuals of a meniscectomy of 10 percent, which is the maximum schedular rating under Diagnostic Code 5259 throughout the appeal period. With regard to lateral instability and subluxation, the Veteran's chiropractor has indicated that the Veteran's knee was unstable during the appeal period. His findings, however, provide no details and do not specify lateral instability. Moreover, the May 2006 showed no instability or subluxation. Further VA records noted left knee instability, but not right knee instability. Likewise, the February 2010 and June 2011 examinations revealed no instability or dislocation after testing for such. The Board finds that the Veteran's chiropractor's notations of the knee being unstable are not as probative as the examinations in the record which were specific for testing for instability and subluxation and detailed in their findings. Moreover, the Veteran's record is filled with voluminous treatment records which do not record instability of the right knee, while they do record it for the left knee. As such, the Board finds that the Veteran does not have at least slight recurrent subluxation or lateral instability of the right knee such as to warrant a separate rating on that basis. Thus, in sum, the Veteran's right knee disability warrants a 10 percent rating based on limited/painful flexion (as already in effect) as well as a 10 percent rating based on symptomatic removal of the semilunar cartilage under Diagnostic Code 5259. Left Knee The Board notes that the Veteran has always demonstrated complete and full extension. Therefore a rating based on impairment of extension is not warranted. With regard to flexion, the Veteran, at worse, has been unable to flex past 80 degrees, taking into consideration the DeLuca factors and limitation caused by repetitive motion. Thus, the Veteran does not have the functional equivalent of flexion limited to 30 degrees such that a higher 20 percent rating is warranted. The Veteran has also demonstrated dislocation/subluxation and instability. On the February 2010 examination, the Veteran was afforded various stability tests and the examiner indicated that his instability was moderate in degree. This finding is supported in the record by the reports of falls due to instability of the left knee. Although instability was not shown on the last examination, it is in fact shown consistently in the other medical records so the Board accepts that the Veteran has this instability, as described. As such, the Board finds that a separate 20 percent rating for moderate impairment based on lateral instability/subluxation is warranted. A higher rating is not warranted because the impairment is not severe. As noted, the VA examiner specifically determined that it was moderate in degree. 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. However, although a meniscus tear was indicated on the February 2010 examination, it was not thereafter confirmed on the x-rays, subsequent examination, or by MRI. Thus, a rating based on meniscus impairment is not warranted. Thus, in sum, the Veteran's left knee disability warrants a 10 percent rating based on limited/painful flexion (as already in effect) as well as a 20 percent rating based on moderate lateral instability/subluxation under Diagnostic Code 5257. Conclusion The Board has considered the lay evidence of record in making its determination; however, it observes that the Veteran's opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected disabilities. Determining the severity of the Veteran's disability must be done by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is not shown to have any specialized medical training in this regard. As discussed above, none of the competent medical evidence of record supports a higher rating than is herein assigned. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent for right or left knee impairment based on limitation of flexion, but the evidence supports a separate 10 percent rating for right knee impairment based on symptomatic removal of the semilunar cartilage, as well as a separate 20 percent rating for left knee impairment based on moderate lateral instability/subluxation. 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 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. The symptoms associated with the Veteran's knee disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disabilities. He has not been hospitalized for his knees and the industrial impairment is taken into consideration in the increased ratings, for the knees alone. The matter of a TDIU due to all service-connected disabilities is still under appeal. Referral for consideration of an extraschedular rating is not warranted. ORDER A rating in excess of 10 percent for right knee disability based on impairment of flexion is denied. A 10 percent rating for right knee disability based on symptomatic removal of the semilunar cartilage is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for left knee disability based on impairment of flexion is denied. A 20 percent rating for left knee disability based on moderate lateral instability/subluxation is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Board previously remanded the matter of entitlement to a TDIU. However, in the recent January 2013 informal hearing presentation, the Veteran's representative raised the issue of service connection for a low back disorder as secondary to service-connected disabilities, and indicated that this matter should be resolved prior to adjudication of the TDIU matter, as they are inextricably intertwined. The representative requested that the Veteran be afforded a new VA examination to address these matters. The Board notes that service connection for a low back disorder as secondary to service-connected pes planus was denied by the Board in a March 2009 decision. However, the matter of service connection for a low back disorder as secondary to service-connected knee disabilities was not addressed. However, separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet App 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004). Thus, while the Board agrees that the newly raised issue must be resolved prior to the TDIU matter, the issue of service connection for a low back disorder as secondary to service-connected disabilities must be considered on a new and material basis by the AOJ, in the first instance. Since this is a petition to reopen a claim, the onus is on the Veteran to furnish the evidence, rather than on VA to provide an examination. Accordingly, the issue of whether new and material evidence has been received to reopen the claim of service connection for a low back disorder as secondary to service-connected disabilities is referred to the AOJ for any necessary development, such as furnishing a VCAA letter, and the Veteran may submit evidence and argument on his own behalf. The matter of a TDIU is deferred pending resolution of that issue in recognition of the issues being intertwined, as pointed out and requested by the Veteran's representative. Accordingly, the case is REMANDED for the following action: 1. Develop as necessary (to include sending a VCAA letter and notifying the Veteran that he may submit evidence and argument on his own behalf) and then adjudicate the issue of whether new and material evidence has been received to reopen the claim of service connection for a low back disorder as secondary to service-connected disabilities. The Veteran should be notified of the outcome of this issue. If denied, he should be provided his procedural and appellate rights and given an opportunity to appeal. 2. Following the resolution of the newly raised issue, the AOJ/AMC should readjudicate the claim on appeal of entitlement to a TDIU in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs