Citation Nr: 1310835 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 07-21 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating for in excess of 10 percent for right knee disability. 2. Entitlement to an initial compensable rating for left ankle disability. 3. Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran initiated an appeal with respect to other matters but in response to the Statement of the Case, he limited his appeal to the issues identified above. When this appeal was previously before the Board in November 2010, the Board remanded the claims for additional development. The case has been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by limitation of flexion; at no time during the appeal period has flexion been limited to less than 45 degrees; extension has not been limited; no lateral instability or recurrent subluxation has been present; and frequent episodes of locking, pain and effusion into the joint have not occurred. 2. Throughout the entire appeal period, the Veteran's left ankle disability has been manifested by limitation of motion that more nearly approximates moderate than marked. 3. Throughout the entire appeal period, the Veteran's type II diabetes mellitus has required medication and a restricted diet, but no regulation of activities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2012). 2. The criteria for an initial 10 percent disability rating, but not higher, for left ankle disability are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 3. The criteria for an initial disability rating in excess of 20 percent for type II diabetes mellitus are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA notice for his claims in March 2006 and September 2006 letters, prior to the December 2006 rating decision on appeal. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claims. In this regard, the record reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained, to include private and VA outpatient treatment records. In addition, the Veteran has been afforded appropriate VA examinations in connection with the claims decided herein, most recently in December 2010. The Board has reviewed the December 2010 examination reports and finds that there has been substantial compliance with the Board's November 2010 remand directive. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not asserted, and the evidence of record does not show, that his right knee disability, left ankle disability, or type II diabetes mellitus has increased significantly in severity since the most recent examinations. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims on appeal. Legal Criteria General Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a , Diagnostic Code 5003. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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 evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Disability Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a , Diagnostic Code 5257. The normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; and a 20 percent rating if flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the knee warrants a noncompensable rating if extension is limited to five degrees; a 10 percent rating if extension is limited to 10 degrees; and a 20 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The removal of semilunar cartilage warrants a 10 percent rating if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). The VA General Counsel also has held that separate ratings under 38 C.F.R. § 4.71a , Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Left Ankle Disability Moderate limitation of motion of an ankle warrants a 10 percent evaluation, while marked limitation of motion of an ankle warrants a 20 percent evaluation. 38 C.F.R. § 4.71a , Diagnostic Code 5271. The terms "moderate" and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Ankylosis of an ankle warrants a 20 percent evaluation if it is in plantar flexion, at less than 30 degrees. A 30 percent evaluation is warranted if the ankylosis is in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is authorized for ankylosis of an ankle if the ankylosis is in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. For reference, under VA rating criteria normal ranges of motion of the ankle are as follows: dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes relating to the ankle are Diagnostic Code 5262 (malunion or nonunion of the tibia and fibula); Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of os calcis or astragalus); and Diagnostic Code 5274 (astragalectomy). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. Type II Diabetes Mellitus Diabetes mellitus is evaluated under Diagnostic Code 7913, which provides a 20 percent rating for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated; and a 100 percent rating when the diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities), with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities."' Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. Right Knee Disability By a rating decision dated in December 2006, the RO granted service connection for a right knee disability, residuals of reconstruction surgery for the anterior cruciate ligament (ACL) with tear of the meniscus, and assigned a 10 percent rating, effective July 1, 2005. The Board notes that the Veteran is currently rated analogously at 10 percent for other impairment of the right knee under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5257. The service treatment records reveal that the Veteran underwent a right knee ACL and torn meniscus repair in May 1986 following a jumping injury. In January 1987, the Veteran was found to have extension to 5 to 10 degrees and flexion to 120 degrees. He had some complaints of pain throughout the remainder of service, but there were no further findings noting limitation of motion of the right knee upon clinical examinations. His in-service diagnoses included status post right ACL reconstruction and mild degenerative joint disease of the right knee. During the December 2004 separation examination, the examiner noted on the report of medical history that the Veteran had undergone a right knee ACL repair in 1986, and indicated that the Veteran still had a screw and pain in the bone and right lateral ligament laxity. However, the lower extremities were evaluated as normal upon clinical evaluation. During an August 2006 VA examination, the Veteran reported right knee joint pain. Physical examination of the right knee demonstrated curvilinear old operation scar on the anteromedial aspect of the knee 20 centimeters in length. The screw head was palpable on the proximal tibial region. There was mild anterior instability on the right knee. The range of motion of the right knee was 0 degrees of extension to 120 degrees of flexion. The motor and sensory functions of the right lower extremity were within normal limits. X-rays revealed one screw and staple in the right knee joint. Bony tunnel was observed from the proximal femur to the proximal tibial for anterior cruciate ligament reconstruction. On the stress view of the right knee, there was no remarkable instability. Magnetic resonance imaging (MRI) of the right knee showed chondromalacia at the femoral condyle, lateral facet of patella, and medial tibial condyle. Vertical tear of the lateral meniscus at posterior horn and horizontal tear of medial meniscus were noted. The examiner stated that the Veteran has disability on the right knee. Post-service VA treatment records note the history of the Veteran's right knee disability, but do not contain any objective findings specific to the right knee. The Veteran was provided another VA examination to evaluate his right knee disability in December 2010, during which the claims file was available. The Veteran indicated that he had minor soreness in his right knee. He gets no swelling, instability, or locking. He does not take any medication for it. He gets no flare-ups and has no inflammatory joint disease. He gets no incapacitating events. He does have a brace, which he uses when he exercises. The right knee disability does not affect his daily activities or his employment. Upon physical examination of the right knee, the Veteran had a 21 centimeter anterior scar. He had no tenderness or swelling around the patella or the medial or lateral aspect of the joint. He had no Baker cyst or tenderness in the posterior aspect of the joint. He flexed to 140 degrees and fully extended. Repeat flexion and extension of his knee both actively and passively produced no indication of pain, weakness, or fatigue. Lateral and medial stress on the knee showed no laxity of the lateral or medial collateral ligaments. He had a negative anterior and posterior drawer sign, which indicated intact anterior and posterior cruciate ligaments. The Veteran had a negative McMurray's sign. He ambulated without appearance of discomfort. The impression of X-rays of the right knee was of mild osteoarthritic changes of the knee likely secondary to trauma. The assessment was posttraumatic postsurgical degenerative changes of the right knee. The Veteran indicated that his right knee disability had absolutely no effect on his current employment and he does not plan to be unemployed. He does have very minor issues concerning his right knee which do not affect any of his activities and so he remains both actively and passively employable. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his service-connected right knee disability. At no time during the initial rating period has the Veteran complained of or been found to have recurrent subluxation. In addition, no evidence of lateral instability has been found. The Board observes that the August 2006 VA examiner found mild anterior instability of the right knee and did not find evidence of lateral instability or subluxation. In addition, at the December 2010 VA examination, the Veteran denied having any instability in his right knee and all findings pertaining to the ligaments were normal. In sum, the evidence shows that the Veteran does not warrant a compensable rating under Diagnostic Code 5257. The evidence confirms that the Veteran has arthritis and some limitation of flexion of his right knee, which support the assignment of a 10 percent rating. A rating in excess of 10 percent for limitation of flexion requires limitation that more nearly approximates limitation to 30 degrees than limitation to 45 degrees. Even with consideration of all pertinent disability factors, it is evident that the Veteran does not have sufficient limitation of flexion to warrant a rating in excess of 10 percent. Moreover, throughout the initial rating period the Veteran has been found to have full extension of his right knee so a separate compensable rating is not warranted for limitation of extension. A separate compensable rating under Diagnostic Code 5259 for symptoms following removal of semilunar cartilage is not warranted because the symptoms justifying a 10 percent rating under Diagnostic Code 5259 are not separate and distinct from those contemplated by a 10 percent rating for arthritis with limitation of flexion. Moreover, a higher rating is not warranted under Diagnostic Code 5258 because the Veteran has not complained of or been found to experience frequent episodes of locking, pain and effusion into the joint. The Board has considered whether there is any other schedular basis for granting this claim but has found none. In particular, the Board notes that the evidence fails to establish the presence of ankylosis so Diagnostic Code 5256 is not for application. Similarly, as the evidence fails to demonstrate impairment of the tibia or fibula, Diagnostic Code 5262 is not applicable. As there is no showing of genu recurvatum, Diagnostic Code 5263 is inapplicable. Further, the Board notes that the Veteran was separately awarded service connection for scars of the right knee effective July 1, 2005. The Board notes that VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the Veteran's correspondence to VA as well as his reports to the VA examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran complete competence and credibility in reporting his symptoms, he has not asserted - and the medical evidence does not show - that his service-connected right knee disability warrants more than the currently assigned rating of 10 percent. Ultimately, the Board finds that throughout the appeal period, the Veteran's right knee disability has most closely approximated the schedular criteria for a 10 percent rating. Left Ankle Disability By a rating decision dated in December 2006, the RO granted service connection for a left ankle disability, and assigned a noncompensable evaluation, effective July 1, 2005. The Board notes that the Veteran's left ankle disability is currently rated as noncompensable for limited motion of the ankle under 38 C.F.R. § 4.71a, Diagnostic Code 5271. The service treatment records show that the Veteran sought treatment for an inversion injury of the left ankle in January 1988. X-rays taken at that time were negative. The Veteran later underwent left ankle surgery in July 1998 for osteochondritis dissecans (OCD) of the left ankle following an inversion injury in June 1997. An entry dated in June of an unspecified year shows that the Veteran sustained a left ankle grade II sprain and the left ankle was found to lack 5 degrees in range of motion in each direction. During the December 2004 separation examination, the examiner noted the Veteran's 1998 left ankle surgery, and indicated that the Veteran experienced pain and stiffness, but upon clinical evaluation, the lower extremities were found to be normal. During an August 2006 VA examination, the Veteran complained of left ankle pain. Upon physical examination, multiple punctured scars were observed around the left ankle joint line. The range of motion of the left ankle was from 15 degrees dorsiflexion to 40 degrees plantar flexion. The motor and sensory functions of the left lower extremity were within normal limits. X-rays showed no abnormality in the left ankle. MRI of the left ankle showed subchondral trabecular compression with subchondral bone marrow edema at the lateral talar dome, suggesting OCD, stage I. The examiner stated that the Veteran has disability on the left ankle. Post-service VA treatment records note the history of the Veteran's left ankle disability, but do not contain any objective findings specific to the left ankle. The Veteran was provided another VA examination to evaluate his left ankle disability in December 2010, during which the claims file was available. The examiner reported that the Veteran had no complaints about his ankle. He did not take any medication for it and he gets no flare-ups. He had no inflammatory joint disease and gets no incapacitating events. He does not have a brace. The left ankle disability did not affect the Veteran's daily activities or his employment. Physical examination of the left ankle revealed that the left ankle appeared anatomically normal. The Veteran had no tenderness or swelling in the anterior, posterior, medial, or lateral aspect of the ankle. He plantar flexed to 55 degrees and dorsiflexed to 15 degrees. The foot supinated to 35 degrees and pronated to 20 degrees. Repeat plantar flexion, dorsiflexion, supination, and pronation both actively and passively, produced no indication of pain, weakness, or fatigue. The Veteran had no indication of instability anteriorly, posteriorly, medially, or laterally. The Achilles tendon was in the vertical and nontender. The Veteran ambulated without appearance of discomfort. The impression of X-rays of the left ankle was of unremarkable ankle. The assessment was of normal left ankle. The Veteran indicated that his left ankle disability had absolutely no effect on his current employment and he does not plan to be unemployed. He does have very minor issues concerning his left ankle which do not affect any of his activities and so he remains both actively and passively employable. In written statements, the Veteran has indicated that he experiences swelling, stiffness, and warmth in the left ankle and walks with a slight limp due to pain. He claims that he experiences pain in the left ankle with weight bearing and when the pain becomes unbearable, he will take Tylenol or Motrin and use a lace up ankle brace to relieve some of the pain. Upon careful review of the evidence of record, as outlined above, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's left ankle disability is manifested by moderate limitation of motion for the entire appeal period. In August 2006, the range of motion of the left ankle was from 15 degrees dorsiflexion to 40 degrees plantar flexion. Although in December 2010 the examiner indicated that the Veteran had no complaints regarding his left ankle and the assessment was of normal left ankle, his dorsiflexion was limited to 15 degrees during the examination. He has subjectively reported pain, swelling, stiffness, and warmth. Therefore, the Board finds that the Veteran's left ankle disability picture, when considered as a whole, is sufficient to warrant a 10 percent rating for moderate limitation of motion. However, the Board finds the limitation of motion during this period does not more nearly approximate the marked limitation required for a rating in excess of 10 percent. Neither the lay nor the medical evidence more nearly reflects marked limitation of motion of the ankle or ankylosis. As noted above, the report of VA examination dated in August 2006 reflects dorsiflexion to 15 degrees and plantar flexion to 40 degrees. The motor and sensory functions of the left lower extremity were within normal limits. Likewise, report of VA examination dated in December 2010 reflects dorsiflexion to 15 degrees and plantar flexion to 55 degrees. Repetition of plantar flexion and dorsiflexion, both actively and passively, produced no indication of pain, weakness, or fatigue. The assessment was of normal left ankle. In addition to the above, the medical evidence shows no instability. In sum, the Veteran's disability is productive of moderate limitation of motion, but the limitation of motion does not more nearly approximate marked. The Board has further considered whether an initial rating in excess of 10 percent is warranted under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher evaluation is not warranted under any other provision because there is no evidence of ankylosis (frozen joint), or malunion of os calcis or astragalus. See C.F.R. § 4.71a, Diagnostic Code 5270 (ankylosis), 5272 (subastragalar or tarsal joint ankylosis), 5273 (os calcis or astragalus, malunion of). As noted above, VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza; supra. Accordingly, the Board has carefully considered the Veteran's correspondence to VA as well as his reports to the VA examiners. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. However, even affording the Veteran complete competence and credibility in reporting his symptoms, he has not asserted - and the medical evidence does not show - that his service-connected left ankle disability more closely approximated the schedular criteria for a 20 percent rating during the period under review when all of the pertinent evidence is considered. Type II Diabetes Mellitus By a rating decision dated in December 2006, the RO granted service connection for type II diabetes mellitus, and assigned a 20 percent evaluation, effective July 1, 2005. The service treatment records show that the Veteran was diagnosed with type II diabetes mellitus in April 2002 and was subsequently treated with insulin, medication, and restricted diet. He was also encouraged to exercise. The service treatment records indicate that the type II diabetes mellitus was well controlled. During the December 2004 separation examination, the examiner noted that the Veteran's type II diabetes mellitus was controlled. During a July 2006 evaluation, the examiner noted that the Veteran's sugar was under very good control. Post-service VA and private treatment records show that the Veteran has received ongoing treatment for type II diabetes mellitus, which includes insulin. VA treatment records show that the Veteran was advised to add regular physical exercise into his daily or weekly routine. In December 2007, the Veteran was found to have mild nonproliferative diabetic retinopathy in the right eye. A private discharge summary dated in February 2007 shows that the Veteran was treated for poor glucose control and was assessed with diabetic neuropathy. Other private treatment records show that the Veteran was hospitalized in March 2007 for hypoglycemia and was discharged in stable condition with medications. The Veteran was provided with a VA diabetes mellitus examination in December 2010, during which the claims file was reviewed. The Veteran denied a history of pancreatic trauma and diabetes-related neoplasm. The Veteran did report a history of diabetes-related hospitalization or surgery, in 2002 and again in 2007. The Veteran reported taking 7 medications, including insulin. He endorsed erectile dysfunction, and stated that he uses medication with good results. The Veteran also endorsed peripheral neuropathy, reporting tingling and burning in the fingers and toes since 2004. He denied any current skin problems. The Veteran denied episodes of hypoglycemia reactions or ketoacidosis. He was instructed to follow a restricted or special diet. He was not restricted in the ability to perform strenuous activities. The Veteran denied symptoms of peripheral vascular disease (lower extremities), neurovascular disease, skin disorders, gastrointestinal disorders, or other diabetic complications. The Veteran reported peripheral neuropathic symptoms of paresthesias and dysesthesia of the hands and feet. He also indicated that he had microalbumenuria with normal BUN and creatinine. Upon physical examination, the examiner reported that the Veteran had no weight change. The examiner reported the December 2007 optic findings contained in the VA treatment records. There were no diabetic skin abnormalities. Cardiac and pulmonary examinations were unremarkable. Extremity examination revealed no ulcerations, edema, or amputations. There were normal pedal pulses. Detailed reflex examination findings were normal. Sensory examination showed decreased sensation to light touch of the hands and feet and normal vibratory sensation of the hands and feet. Detailed motor examination was normal, as well as muscle tone. There was no muscle atrophy. After reviewing the results of laboratory reports and chest X-rays, the examiner rendered a diagnosis of type II diabetes without amputation. Potential diabetic complications found included cardiovascular disease, kidney disease, neurologic disease, and "other" diabetic conditions. The diagnoses of the Veteran's diabetic complications included nephropathy, manifested by microalbumenuria with normal BUN/Creatinine; mild sensory peripheral neuropathy of the hands and feet; hypertension; and erectile dysfunction. There was no peripheral edema present. The examiner indicated that there were no effects of diabetes (and all diabetic conditions) on functionality in the Veteran's usual occupation, and no effects on his usual daily activities. The Veteran was currently employed working fulltime with passports at the Department of State. The duration of his employment was 1 to 2 years and the time lost from work during the previous 12 month period had been less than 1 week due to medical appointments. The Veteran contends that he is entitled to a higher initial rating for type II diabetes mellitus because he has been hospitalized for a hyperglycemic episode associated with diabetes. Based on the evidence presented, the Board finds that an evaluation in excess of the currently assigned 20 percent for diabetes mellitus is not warranted. In this regard, the Board notes that to warrant a higher evaluation the evidence must show diabetes mellitus type II requiring insulin, a restricted diet and regulation of activities. To warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive - i.e., there must be insulin dependence and restricted diet and regulation of activities. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. Here, at most, the more persuasive evidence of record shows that the Veteran's diabetes mellitus requires medication and a restricted diet. The medical record is devoid of any showing of a requirement of regulation of activities by his medical providers. In this regard, VA treatment records show that the Veteran was advised to add regular physical exercise into his daily or weekly routine. During the December 2010 VA examination, the examiner reported that the Veteran was instructed to follow a restricted or special diet, but he was not restricted in the ability to perform strenuous activities. While the evidence shows that the Veteran was hospitalized in March 2007 for hypoglycemia, there is no indication in the record of any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations since that time. Further, in December 2010, the Veteran denied episodes of hypoglycemia reactions or ketoacidosis. Moreover, with regards to the Veteran's diagnosed complications of diabetes noted in the VA treatment records and upon VA examination, the Board notes that the Veteran has been granted service connection with separate ratings for peripheral neuropathy of the left and right upper extremities, diabetic retinopathy, hypertension, diabetic nephropathy, and peripheral neuropathy of the left and right lower extremities. Further, the Veteran is in receipt of special monthly compensation for loss of use of a creative organ due to erectile dysfunction. The separately complications and the erectile dysfunction are not at issue in this appeal. The Board acknowledges that the Veteran is competent to report worsening symptoms. Heuer, supra. The Veteran contends that he is entitled to a higher initial rating for type II diabetes mellitus because he has been hospitalized for a hyperglycemic episode associated with diabetes. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence shows that the Veteran is not required to regulate his due to diabetes mellitus. Thus, even affording the Veteran complete competence and credibility in reporting his symptoms, he has not asserted - and the medical evidence does not show - that his service-connected type II diabetes mellitus meets the schedular criteria for a 40 percent initial rating when all of the pertinent evidence is considered. Therefore, his disability does not warrant an evaluation in excess of 20 percent under the schedular criteria. Additional Considerations Consideration has been given to assigning staged ratings for the Veteran's right knee disability, left ankle disability, and type II diabetes mellitus; however, at no time during the period in question have the disabilities warranted more than the ratings discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the disabling manifestations of the service-connected disabilities are contemplated by the schedular criteria. The Board acknowledges the Veteran's assertion that he resigned from a job several years ago to receive adequate treatment for his type II diabetes mellitus. However, the Board notes that the Veteran is currently employed with the Department of State and reported in December 2010 that he had missed less than 1 week of work for medical appointments in the prior 12 month period. Additionally, the VA examiner found that the diabetes mellitus had no effects on the Veteran's usual occupation. The Board has therefore determined that referral of this case for extra-schedular consideration is not in order. ORDER An initial disability rating in excess of 10 percent for right knee disability is denied. An initial 10 percent disability rating, but not higher, for left ankle disability is granted for the entire initial rating period, subject to the criteria applicable to the payment of monetary benefits. An initial disability rating in excess of 20 percent for type II diabetes mellitus is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs