Citation Nr: 1311447 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-39 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for residuals of chondromalacia right knee with patellar tendon traction spurs from November 25, 2007 to March 6, 2012. 2. Entitlement to a disability evaluation in excess of 30 percent for status-post right knee total arthroscopy from May 1, 2013 forward. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1971, and from June 1979 to September 1986. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida, which continued the prior 10 percent disability evaluation for chondromalacia right knee with patellar tendon traction spurs. A subsequent July 2012 rating decision granted a temporary evaluation of 100 percent, effective March 7, 2012 to April 30, 2012, based on the implantation of a prosthesis, and a 30 percent evaluation, effective May 1, 2013 forward, for status-post right knee total arthroscopy, the minimum rating following prosthetic joint replacement under 38 C.F.R. § 4.71a, Diagnostic Code 5055. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation for the Veteran's chondromalacia right knee with patellar tendon traction spurs remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). However, as the Board does not currently have the evidence necessary to make a determination on the current severity of the Veteran's status-post right knee total arthroscopy for the period May 1, 2013 forward, it cannot decide this issue and it is addressed in the remand below. In July 2009, the Veteran presented testimony before a Decision Review Officer at the St. Petersburg RO. In January 2012, he presented testimony before the undersigned Veterans Law Judge. Transcripts of the hearings have been associated with the Veteran's claims folder. The Board has previously considered this claim. In May 2012, the Board remanded the claim for additional evidentiary development, specifically, to request records from the Social Security Administration ("SSA"), obtain updated VA treatment records, and afford the Veteran a new VA knee examination. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The requested development having occurred, the Board finds there has been substantial compliance with the terms of the remand. The issue of entitlement to a total disability rating based on unemployability due to service-connected disabilities ("TDIU") has been raised by the record. The RO is, however, in the process of developing and adjudicating that claim. See, e.g., September 2011 RO Veterans Claims Assistance Act of 2000 letter to Veteran; July 2012 rating decision in which the TDIU claim was deferred pending VA examination; and July 2012 RO letter to Veteran notifying him, in pertinent part, of future action (VA examination) to be taken on the TDIU claim). Thus, this issue will not be addressed by the Board in this decision at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009), The issue of entitlement to an evaluation in excess of 30 percent for status-post right knee total arthroscopy for the period May 1, 2013 forward 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. The Veteran will be notified if additional action is required on his part. FINDING OF FACT For the period November 25, 2007 to March 6, 2012, the Veteran's chondromalacia right knee with patellar tendon traction spurs was manifested by subjective complaints of painful motion, flexion no less than 110 degrees, normal extension of zero degrees, no evidence of any additional limitations upon repeated use, and no evidence of subluxation, instability or ankylosis. CONCLUSION OF LAW For the period November 25, 2007 to March 6, 2012, the criteria for a disability evaluation in excess of 10 percent for chondromalacia right knee with patellar tendon traction spurs have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the VA Secretary ("Secretary"). See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By a letter dated December 2008, the Veteran was advised of the information necessary to substantiate his claim of entitlement to an increased disability evaluation. This letter informed him that he should provide evidence showing that his disability had increased in severity and provided notice of the types of evidence, both lay and medical, that could be submitted in support of a claim for an increased rating, and advised him of what VA would do to assist him in obtaining evidence. This letter also afforded the Veteran appropriate notice per Dingess/Hartman, supra. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims folder contains the Veteran's pertinent treatment records for treatment during the course of the appeal, and a VA examination report dated December 2008. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been associated with the claims folder. The Board notes that the increased rating issue has been divided into two time periods, as the Veteran has been receiving a temporary total disability rating since March 7, 2012, when he underwent a total right knee replacement. The issue remanded below is for the period following this temporary total disability rating. Review of the December 2008 examination report shows that the VA examiner reviewed the complete claims folder, elicited from the Veteran his history of right knee symptomatology and its effect on his daily functioning, reviewed diagnostic test results and provided the clinical results of the evaluation. Accordingly, the Board finds that the VA examination report is adequate upon which to base a decision in this case. Moreover, all procedures to obtain records pertaining to the Veteran's claim have been correctly followed. In this respect, as noted above, VA made an attempt to obtain the Veteran's SSA records. The Court has repeatedly held that when VA is on notice that there are relevant SSA records, it must obtain and consider them. See Baker v. West, 11 Vet. App. 163,169 (1998); Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996). Here, in August 2012, VA requested that SSA send any records pertaining to the Veteran's reported SSA claim. Later that month, VA was notified that all medical records pertaining to the Veteran had been destroyed. In September 2012, the Veteran was notified of VA's attempt to obtain the aforementioned records and was advised that if he had any SSA records in his possession to please submit them. However, he failed to respond within the afforded 10-day notification period. Further, as noted the appellant was afforded a Board hearing in January 2012. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing generally was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's submissions and statements, as well as those of his representative, demonstrate actual knowledge of the elements and evidence necessary to substantiate the claim because the submissions and statements focus on the evidence and elements necessary to substantiate the claim. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been has been consistent with the provisions of the VCAA. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirements has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. See Overton v. Nicholson, 20 Vet. App. 427 (2006). Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DCs") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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). 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. 38 C.F.R. § 4.40 (2012). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Court has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Board notes that the words "slight," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, so that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71, DCs 5260 and 5261. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II (2012). During the period November 25, 2007 to March 6, 2012, the Veteran's right knee disability, diagnosis as chondromalacia right knee with patellar tendon traction spurs, was evaluated pursuant to 38 C.F.R. § 4.71a, DCs 5010-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is rated as degenerative arthritis under DC 5003. Pursuant to DC 5003, degenerative arthritis (hypertrophic or osteoarthritis), established by x-ray findings, will be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Id; see also 38 C.F.R. § 4.59; Hicks v. Brown, 8 Vet. App. 417, 420 (1995) (citing Litchenfels v. Derwinski, 1 Vet. App. 484, 488 (1991)). Under DC 5257, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. The VA General Counsel has issued a precedent opinion holding that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5010-5003 and 5257, but cautions that any such separate rating must be based upon additional disabling symptomatology. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). Review of the claims folder shows that, during a December 2007 outpatient visit to his orthopedic surgeon at the local VA Medical Center ("VAMC"), the Veteran complained that his right knee was getting a little worse. Range of motion was from zero to 120 degrees with evidence of medial joint line tenderness and patellofemoral pain syndrome, but without evidence of effusion. Lachman's Test was positive, suggesting a possible anterior cruciate ligament ("ACL") tear; the collateral ligaments were deemed "ok." During a return outpatient visit in March 2008, the clinical findings were the same, and the examiner noted that the right knee was stable. He opined, however, that the joint was expected to get worse. The diagnosis was degenerative joint disease. In June 2008, the Veteran reported that the right knee was tender and it was difficult to walk. He also complained of intermittent swelling, adding that he was icing the knee with little to no improvement. In July 2008, the Veteran returned to the VAMC for a corticosteroid injection. At that time, an x-ray revealed mild joint space narrowing. Range of motion was zero to 110 degrees, and the knee was noted to be generally tender, but stable. In October 2008, the Veteran was seen for complaints of constant right knee pain and occasional swelling that limited his activities. Range of motion was zero to 120 degrees with medial and lateral tenderness and collateral stability. A magnetic resonance imaging (MRI) revealed an irregular post medial meniscus, ligament okay, with minimal degenerative changes. In November 2008, the Veteran was fitted with a wrap-around knee brace and began the prescription non-steroidal anti-inflammatory drug, salsalate. In December 2008, the Veteran was afforded a VA compensation and pension joint examination, at which time, he complained of right knee pain, stiffness, giving way, instability, locking several times per week, swelling, tenderness and effusions. On physical examination, the clinician noted tenderness without objective findings of crepitation, clicks, snaps, grinding, instability or abnormalities. Range of motion was from zero to 120 degrees without objective evidence of pain. Repetitive motion was performed without objective evidence of pain and no additional limitation of motion. There was no evidence of ankylosis. An x-ray showed minimal medial joint space narrowing. An MRI revealed that the anterior and posterior cruciate ligaments were intact. There was abnormal signal intensity in the posterior horn of the medial meniscus consistent with myxoid degeneration. A small tear in the posterior horn could not be completely excluded. The lateral meniscus was intact, as was the medial collateral ligament. There was abnormal signal intensity and thickening in the superior attachment of the lateral collateral ligament suspicious for partial tear. The patellar tendon and medial and lateral patellar retinacula were intact and there was a small effusion. The diagnosis was internal derangement of the right knee with small effusion. While the examiner noted that the condition would have a moderate to severe effect on the Veteran's ability to participate in sports and exercise, it would have little to no effect on his activities of daily living; it was noted that the Veteran was no longer employed, as he had retired from the U.S. Postal Service in 2004 due to his bilateral knee disabilities. VAMC outpatient treatment records following the VA examination show similar right knee range of motion and stability findings. In January 2009, range of motion was zero to 120 degrees. In April 2009, the Veteran reported that his knee pain was getting worse and he was now having trouble sleeping . Range of motion was zero to 115 degrees with trace swelling and collateral stability. In April 2010, the Veteran noted that he was now considering undergoing surgery for the right knee. Range of motion was zero to 110 degrees. By November 2010, his orthopedic surgeon noted that the knee was now bad enough that the Veteran was ready for a total knee replacement. Nonetheless, range of motion still had not fallen below zero to 110 degrees and there was no evidence of instability. The clinical findings were the same in April 2011, when a bone scan revealed no increased uptake of right knee lesions. On March 7, 2012, the Veteran entered the hospital and subsequently underwent a total right knee replacement. He was later granted a temporary evaluation of 100 percent, effective March 7, 2012 to April 30, 2013, based on the implantation of a prosthesis. Applying the pertinent legal criteria to the facts of this case, the Board concludes that, for the period November 25, 2007 to March 6, 2012, the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of the current 10 percent for chondromalacia right knee with patellar tendon traction spurs under DC 5257. In fact, although the Veteran reported to the December 2008 VA examiner that he occasionally experienced giving way of the knee, and the MRI performed during the evaluation noted that a small tear in the posterior horn could not be completely excluded, the anterior and posterior cruciate ligaments were noted to be intact, as was the medial collateral ligament. Moreover, neither the VA examiner, nor the Veteran's orthopedic surgeon, ever noted any right knee instability during this portion of the appeal period. Rather, as discussed above, outpatient treatment records consistently demonstrate that the Veteran's right knee was stable. There has also been no objective evidence of dislocation or recurrent subluxation during this portion of the appeal period. Accordingly, the requirement for impairment, including instability or subluxation and whether slight or moderate, under DC 5257 is not met. The Board has also considered whether an increased rating is warranted under either DCs 5260 or 5261 for limitation of flexion or extension. However, as the Veteran does not have flexion limited to 30 degrees, a higher rating is not warranted under DC 5260. Moreover, as the Veteran does not have extension limited to 15 degrees, a higher rating is not warranted under DC 5261. 38 C.F.R. § 4.71a. Furthermore, during this portion of the period on appeal, there was no evidence of excess fatigability with repetitive movement or additional limitation of movement to the extent necessary for an increased disability rating. Accordingly, it appears that the current 10 percent rating adequately compensates him for his right knee disability based on pain and noncompensable limitation of flexion of a major joint pursuant to the provisions of DC 5003. With regard to assigning a higher disability rating or ratings based on functional loss as contemplated by the Court's holding under DeLuca v. Brown, supra, again, the Board has considered the Veteran's reported symptoms due to his right knee disability. However, the Board notes that the 10 percent disability currently assigned under DC 5257 for this portion of the period on appeal already contemplates the potential problems associated with the Veteran's disorder. The Board has also considered whether other diagnostic codes are applicable to the Veteran's right knee disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). The remaining diagnostic codes relating to knee disabilities include DC 5256 (ankylosis of the knee), DC 5258 (cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint), DC 5259 (cartilage, semilunar, removal of, symptomatic), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). However, as there is no objective evidence of record to indicate that the Veteran has been found to have ankylosis of the knee; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; symptomatic removal of the semilunar cartilage; impairment of the tibia and fibula; or acquired, traumatic genu recurvatum, these diagnostic codes are not applicable. In addition to the medical evidence, the Board has also carefully considered the Veteran's statements regarding the severity of his right knee disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that his disability has been more severe than the currently-assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the severity of a complex knee disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Washington v. Nicholson, 19 Vet. App. 363 (2005); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of a disability even where not corroborated by contemporaneous medical evidence). In this case, although the Veteran is clearly competent to report the knee symptoms he experiences, the competent medical evidence offering detailed, specific, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In denying the Veteran's claim for a higher disability evaluation, the Board has also considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule for Rating Disabilities 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). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. In this case, however, as noted above, there has been no evidence presented during this portion of the period on appeal that the Veteran's right knee disability has presented such an exceptional disability picture that the available schedular evaluations are inadequate. Further, the current 10 percent disability rating contemplates the pain that is often associated with internal derangement of the knee. Finally, while the Veteran has reported that, due in part to his right knee disability, he was forced to retire from his job as a letter carrier with the U.S. Postal Service in 2004, the demonstrated symptomatology associated with the Veteran's service-connected right knee disability are adequately contemplated by the schedular criteria which do provide for higher ratings with the presence of greater symptomatology. Moreover, to the extent that the Veteran is claiming that he is unemployable due to his combination of service-connected disabilities, the matter is being adjudicated by the RO at this time, as noted in the Introduction. Accordingly, referral of this claim for extraschedular consideration is not indicated. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In summary, although the Board is sympathetic to the Veteran's concerns, as discussed above, schedular evaluations for his right knee disability are based on application of the Rating Schedule to the symptoms demonstrated based on the evidence of record. As such, the Board concludes that the evidence of record is against the Veteran's claims of entitlement to a disability evaluation in excess of 10 percent for residuals of chondromalacia right knee with patellar tendon traction spurs prior to March 7, 2012. As there is not an approximate balance of evidence, the "benefit-of-the-doubt rule" enunciated in 38 U.S.C.A. § 5107(b) is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER For the period November 25, 2007 to March 6, 2012, entitlement to a disability evaluation in excess of 10 percent for residuals of chondromalacia right knee with patellar tendon traction spurs is denied. REMAND Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Moreover, while the VCAA duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted (see VAOPGCPREC 11-95), the Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In this case, the Veteran was last afforded a VA joints examination in June 2012, three months after his March 2012 total right knee replacement. At that time, the examiner indicated that the Veteran's right knee disability had not yet been fully rehabilitated following the March 2012 surgery. Review of the claims folder also shows that the Veteran has recently submitted a letter stating that he is now experiencing "declining use" of his right knee following surgery. Moreover, as noted above, because the Veteran has appealed the 30 percent disability evaluation, effective May 1, 2013, for his status-post right knee total arthroscopy, and there is currently no evidence available to determine the severity of the joint for this period, the Board finds the Veteran is entitled to a new VA examination. Additionally, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In this case, as the most recent VA treatment reports of record pertaining to treatment for the Veteran's right knee appear to be dated in April 2012, the RO/AMC should ensure that any treatment reports since that date are obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records pertaining to the Veteran's service-connected right knee disability since April 2012 and associate those reports with the claims folder or with the electronic record via Virtual VA. Any negative reply should be noted. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right knee disability on or after May 2013. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests and evaluations deemed necessary should be performed (to include range of motion testing), and the clinical findings must be reported in detail. The examiner should elicit a complete history of the Veteran's right knee symptomatology and problems and note that, in addition to the examination findings, the Veteran's self-reported history has been taken into consideration in the examination report. (a) The examiner should specifically describe the degree of disability present in the Veteran's right knee, including the current ranges of motion, along with any objective evidence of pain. If motion is specifically limited by pain due to the service-connected disorder, the examiner must specify at what degree such pain is noted to begin for all ranges of motion tested. The extent of any incoordination, weakened movement and excess fatigability on use must be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should also specify if ankylosis is present. Any and all opinions must be accompanied by a complete rationale. The examiner should specifically describe the effects of the Veteran's right knee disability on his occupational functioning and daily activities of life. A complete rationale for all opinions expressed must be included in the examination report. 3. After completing any further development deemed necessary, readjudicate the appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs