Citation Nr: 1314036 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 10-11 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for limitation of right knee extension from December 12, 2006 through July 21, 2009. 2. Entitlement to a staged initial rating in excess of 20 percent for limitation of right knee extension from July 22, 2009, through January 3, 2013. 3. Entitlement to a compensable initial rating for limitation of right knee flexion from December 12, 2006 through January 3, 2013. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1982 to February 1988, with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The September 2007 rating decision granted service connection for degenerative osteoarthritis of the right knee, and assigned a 10 percent initial rating, effective from December 12, 2006. A written statement received in April 2008, signed by the Veteran, may be reasonably construed as a timely notice of disagreement with the intial rating assigned. A substantive appeal was received within 60 days of issuance of a statement of the case. During the pendency of the appeal, a rating decision in October 2008 confirmed and continued the previously assigned 10 percent schedular evaluation for degenerative osteoarthritis of the right knee and, in addition, granted separate service connection for limitation of extension of the right knee with an initial evaluation of 10 percent, effective from December 12, 2006. By a rating decision in May 2010, the RO found clear and unmistakable error in the October 2008 determination and, as a result, assigned a 30 percent initial rating for limitation of right knee extension from December 12, 2006, and a 20 percent staged initial rating from July 22, 2009. The May 2010 rating decision also assigned a zero percent rating for degenerative osteoarthritis of the right knee from December 12, 2006. Rating action in September 2011 confirmed and continued the 20 percent rating previously assigned for limitation of right knee extension. In October 2012, the Board remanded the Veteran's claim for additional development. It has now returned to the Board for further appellate consideration. Upon review of the evidence, the Board has re-characterized the issues as shown on the title page for greater clarity of the disability ratings on appeal. A March 2013 rating decision granted a temporary total evaluation of 100 percent for right knee arthroplasty from January 4, 2013 through February 28, 2014 and a 30 percent evaluation on and after March 1, 2014. The Board acknowledges that the 30 percent rating does not represent the maximum evaluation available; however, as that issue is not yet ripe for adjudication, the Board will not address that issue on appeal. FINDINGS OF FACT 1. From December 12, 2006 through January 3, 2013, the Veteran's right knee disability was manifested by limitation of extension to 15 degrees with painful motion, buckling, and additional loss of joint function due to pain after repetitive use. 2. From December 12, 2006 through January 3, 2013, the Veteran's right knee was manifested by limitation of flexion to 90 degrees. CONCLUSIONS OF LAW 1. From December 12, 2006 through July 21, 2009, the schedular criteria for an initial disability rating in excess of 30 percent for limitation of right knee extension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256-62 (2012). 2. From July 22, 2009 through January 3, 2013, the schedular criteria for a staged initial disability rating of 30 percent, but no higher, for limitation of right knee extension have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256-62 (2012). 3. From December 12, 2006 through January 3, 2013, the schedular criteria for a compensable rating for limitation of right knee flexion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256-62 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Here, the Veteran is appealing the initial rating assignment pertaining to his service-connected right knee disability. In this regard, because the September 2007 rating decision granted the Veteran's claim of entitlement to service connection, said claim is now substantiated. The Veteran's filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assigned triggers VA's statutory duties under 38 U.S.C.A. § 5104 and § 7105 (West 2002), as well as regulatory duties under 38 C.F.R. § 3.103 (2012). Under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," a January 2010 statement of the case set forth the relevant diagnostic codes for rating the disability at issue and included a description of the rating formulas for the current evaluations and for all other higher evaluations. The Veteran was thus informed of what was needed not only to achieve the next higher schedular rating but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also finds that VA has complied with the October 2012 remand orders. In the October 2012 remand, the Board directed that the RO undertake further action for rating, both schedularly and extraschedularly, each disability on appeal. The evidence demonstrates that a February 2013 Supplemental Statement of the Case sufficiently set forth the dates for all rating actions, the evaluations assigned for each disability, and the dates applicable to those evaluations. In addition, a March 2013 rating decision provided the Veteran further notice pertaining to the disability evaluations. As such, the Board finds the RO substantially complied with the remand directives with respect to the issues decided herein. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Duty to Assist With regard to the duty to assist, the Veteran's claims file contains the service treatment records, VA examination reports, private treatment records, and the Veteran's statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA examinations with respect to the Veteran's claims were conducted in February 2007, May 2008, July 2009, and August 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiners reviewed the pertinent evidence of record and the Veteran's lay statements. Additionally, clinical findings pertinent to the applicable criteria for rating the Veteran's disability were provided. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining an examination or opinion on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 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. In addition, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged 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. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For rating purposes, normal range of motion in a knee joint is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). VA's General Counsel has held that separate ratings are available for compensable limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The service-connected limitation of right knee extension has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, as 30 percent disabling from December 12, 2006 through July 21, 2009, and 20 percent disabling from July 22, 2009 through January 3, 2013. Diagnostic Code 5261 provides for a 10 percent evaluation for leg extension limited to 10 degrees, and a 20 percent evaluation is assigned when extension is limited to 15 degrees. A 30 percent evaluation is warranted for extension limited to 20 degrees, and a 40 percent evaluation is assigned for extension limited to 30 degrees. A maximum 50 percent evaluation is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. From December 12, 2006 through January 3, 2013, the Veteran is also in receipt of a separate noncompensable rating for limitation of right knee flexion under Diagnostic Code 5260. Diagnostic Code 5260 provides for a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees, a 20 percent evaluation is assigned if flexion is limited to 30 degrees, and a maximum 30 percent evaluation is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran underwent VA examination in February 2007 in connection with his claim. The Veteran reported pain that worsened with excessive use to include standing, walking long distances, and climbing stairs. He complained of not being able to fully extend his knee. The Veteran denied buckling, locking and instability, and he stated that his knee did not interfere with his job, although it did interfere with daily activities. He also denied any problems with repetitive use, flare-ups, and incapacitating episodes. On physical examination, there were positive arthritic changes, no cellulitis, and no effusion. Extension was limited to 15 degrees and flexion was limited to 125 degrees, with pain at the end of the range of motion. There was no instability with varus, valgus, anterior, or posterior stressing, and McMurray's sign was negative. After repetitive motion, there was ten percent additional loss of joint function secondary to pain. There was no additional loss due to fatigue or lack of coordination. A January 2008 private treatment record demonstrates range of motion was approximately three to five degrees short of full extension. Flexion was to 130 degrees without pain. There was minimal tenderness over the medial joint line and over the meniscus itself. In May 2008, the Veteran underwent additional VA examination in connection with his claim. He reported symptoms including pain, discomfort, and buckling. The Veteran denied experiencing symptoms of locking, instability, incapacitating episodes, and flare-ups. Physical examination revealed positive arthritic changes, no cellulitis, and no swelling. Extension was limited to 10 degrees and flexion was to 120 degrees, with pain throughout the range of motion. There was crepitus but no instability with varus, valgus, anterior, or posterior stressing. McMurray's sign was negative, but there was medial and lateral joint line tenderness and a positive patellar grind test. After repetitive motion there was an additional 10 degree loss of flexion due to pain with no additional loss due to fatigue or lack of coordination. In a June 2009 written statement, the Veteran asserted he was entitled to a higher disability rating as he had a history of five surgeries on his right knee and was looking at a sixth reconstructive surgery. He also reported having to wear an unloader brace in order to run around with his two kids and do any type of physical activity. On VA examination in July 2009, the Veteran reported buckling and daily pain that limited running, walking for long distances, and standing for long periods of time. The Veteran denied locking, instability, problems with repetitive use, incapacitating episodes, and flare-ups. Physical examination revealed an antalgic gait and positive arthritic changes. There was no cellulitis or swelling. The Veteran lacked 10 degrees of full extension, and flexion was limited to 110 degrees with pain throughout the range of motion. There was crepitus but no instability to varus, valgus, anterior, or posterior stressing. McMurray's sign was negative, and there was positive medial and lateral joint line tenderness and patellar grind test. After repetitive motion, there was no additional loss of joint function due to pain, fatigue, or lack of endurance. X-ray examination revealed mild to moderate tricompartmental osteoarthritis with progression, chondrocalcinosis, small joint effusion, and heterotopic ossification posterior and medial to the proximal diaphysis of the fibula. The Veteran underwent additional VA examination in August 2011 in conjunction with his claim. The Veteran reported flare-ups of the front and inside of the knee after running or playing with his kids. Flexion was limited to 100 degrees with pain beginning at the end of the range of motion, and extension was limited to 15 degrees. After repetitive use testing, flexion was limited to 90 degrees, and extension was limited to 10 degrees. The VA examiner noted that there was additional functional loss of range of motion after repetitive use testing characterized by less movement than normal, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and stiffening after sitting in a car. The Veteran had normal strength, and there was no tenderness or pain to palpation at the joint loss or soft tissues. There was no anterior instability, posterior instability, medial-lateral instability, or recurrent patellar subluxation/dislocation. The VA examiner noted the Veteran had a history of a meniscal tear with frequent episodes of joint locking, pain, and effusion and five operations, including anterior cruciate ligament and meniscus reconstruction with residual popping, clicking, pain, and decreased range of motion. Examination did not reveal any painful or unstable scars, and the total area of all related scars was not greater than 39 square centimeters. The Veteran reported occasionally using an unloader brace and stated that his right knee disability impacted his ability to work as he was unable to run and had to warm up after sitting in his patrol car. Limitation of right knee extension from December 12, 2006 through July 21, 2009 Upon review of the evidence, the Board finds a 30 percent rating is warranted for the Veteran's right knee for limited extension from December 12, 2006 to July 21, 2009. Here, the evidence demonstrates that the Veteran's symptoms included daily pain, discomfort, and buckling, with no objective demonstration of instability, and after repetitive use testing, there was an additional ten degree loss of joint function secondary to pain. On physical examination, extension was limited, at most, to 15 degrees, which correlates to a 20 percent rating under Diagnostic Code 5261. However, the Board will resolve the benefit of the doubt in favor of the Veteran and continue the higher evaluation of 30 percent assigned by the RO. In this respect, the Board has considered the Veteran's statements regarding the impact of his right knee disability on his daily life and is also particularly cognizant that a part that becomes painful on use, such as that described by the Veteran, must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Conversely, a rating in excess of 30 percent is not warranted during this time period as the evidence does not show that extension was limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. As demonstrated above, the Board has also considered whether the Veteran's right knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for the appeal period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. With respect to a disability rating in excess of 30 percent, the February 2007 and May 2008 VA examinations reflect that the Veteran had 10 percent additional loss of joint function due to pain after repetitive use; however, there was no additional loss due to fatigue or lack of coordination. As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating, and a rating greater than 30 percent is not warranted. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the criteria for a disability rating of 30 percent, but no higher, for limited extension of the right knee have been met from December 12, 2006 through July 21, 2009. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Limitation of right knee extension from July 22, 2009 through January 3, 2013 Upon review of the evidence, the Board finds a 30 percent rating is warranted for limited extension of the right knee from July 22, 2009 through January 3, 2013. The evidence demonstrates the Veteran's symptoms included daily pain, locking, buckling, and flare-ups during this time period. Range of testing reflects that extension was limited to, at most, 15 degrees. In addition, the Board has considered whether the Veteran's right knee disability resulted in a level of functional loss greater than that already contemplated by the assigned rating for the appeal period. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. In July 2009, the VA examiner recorded no additional loss of joint function due to pain, fatigue, or lack of endurance. However, in August 2011, there was additional functional loss of range of motion after repetitive use testing characterized by less movement than normal, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing, and stiffening after sitting in a car. As a result, the Board will again resolve the benefit of the doubt in favor of the Veteran and assign a higher evaluation of 30 percent. Conversely, a rating in excess of 30 percent is not warranted as the evidence does not show that extension was limited to 30 degrees at any time during the period at issue, even with consideration of additional functional impairment due to pain, and the record does not indicate that the Veteran reported such limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Limitation of right knee flexion from December 12, 2006 through January 3, 2013 Upon review of the evidence, the Board finds a noncompensable disability rating is warranted for limited flexion of the right knee from December 12, 2006 through January 3, 2013. Range of motion testing throughout the period at issue reflects that at most, flexion was limited to 90 degrees, which correlates to a noncompensable rating under Diagnostic Code 5260. Even with consideration of additional functional impairment due to pain, there has not been demonstration of limitation of flexion comparable to flexion limited to 60 degrees, so as to warrant a compensable rating. DeLuca v. Brown, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Other rating criteria The Board has considered whether increased or separate ratings are warranted under the other criteria for rating the knee. Throughout the pendency of the appeal, the Veteran's right knee was objectively shown to be stable, despite complaints of buckling, and he has not reported any subluxation. An increased or separate rating is therefore not warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability. In addition, the record does not demonstrate ankylosis or impairment of the tibia and fibula as applicable to Diagnostic Codes 5256 and 5262. 38 C.F.R. § 4.71a. Furthermore, the Board notes that the August 2011 VA examination shows the Veteran underwent multiple meniscectomies in 2005 and 2006. However, because the residuals of limited range of motion and arthritis are contemplated by the ratings already assigned, the Board finds a separate 10 percent rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Extraschedular Rating The Board has considered whether the Veteran is entitled to consideration of an extra-scheduler rating for any rating period on appeal. 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). 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). 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to his service-connected disability. There is no competent credible evidence of record that the Veteran has symptoms of his right knee disability which are not considered in the rating criteria. Therefore, a further analysis under Thun is not warranted. Total rating based on individual unemployability Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. ORDER Entitlement to an initial rating in excess of 30 percent for limited extension of the right knee from December 12, 2006 through July 21, 2009 is denied. Entitlement to an increased rating of 30 percent, but no higher, for limited extension of the right knee from July 22, 2009 through January 3, 2013 is granted. Entitlement to a compensable rating for limited flexion of the right knee from December 12, 2006 through January 3, 2013 is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs