Citation Nr: 1315045 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-39 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation greater than 10 percent for traumatic left knee arthritis prior to June 9, 2011. 2. Entitlement to an increased evaluation for traumatic left knee arthritis, status post left knee arthroplasty, evaluated as 30 percent disabling since August 1, 2012. 3. Entitlement to an evaluation greater than 10 percent for right knee arthritis. 4. Entitlement to an evaluation greater than 10 percent for left knee instability prior to June 9, 2011. 5. Entitlement to an evaluation greater than 10 percent for left knee instability since June 9, 2011. 6. Entitlement to an evaluation greater than 10 percent for right knee instability. 7. Entitlement to service connection for sleep apnea. 8. Entitlement to service connection for hypertensive vascular disease. 9. Entitlement to service connection for a lumbar disorder to include spondylosis. 10. Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2005, October 2009 and April 2010 of the Department of Veterans Affairs Regional Office in Houston, Texas. This matter was previously before the Board in October 2012 at which time the case was remanded pursuant to the Veteran's request for a Board video conference hearing. In January 2013, the Veteran testified before the undersigned at a Board video conference hearing. Thus, there has been substantial compliance with the Board's October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). A transcript of the hearing is located in the Veteran's Virtual VA folder. Additional evidence was submitted to the Board in March 2013 in support of the Veteran's claim for service connection for a back disability. This evidence consists of records from the Veteran's treating chiropractor and is accompanied by a waiver of jurisdictional review by the RO in the first instance. 38 C.F.R. § 20.1304(c) (2012). In November 2011, the Veteran reported in writing that he was satisfied with the recent decision for his knee conditions and wished to withdraw his appeal for his knee conditions at that time. The Board finds that this statement is related to an October 2011 decision that granted entitlement to a temporary total rating of 100 percent pursuant to 38 C.F.R. § 4.30 (2012) following left knee surgery in June 2011. It is not construed as a request to withdraw his pending claims of entitlement to increased ratings for his right and left knee disabilities. This is so in light of the Veteran's January 2013 Board hearing testimony at which time he presented testimony as to his ongoing knee symptomatology affecting each knee joint. Additional evidence located in the Veteran's Virtual VA folder, to include a July 2012 VA examination report regarding the Veteran's service-connected right knee disability, have been reviewed. The issues of entitlement to service connection for sleep apnea, hypertensive vascular disease, and a lumbar disorder, to include spondylosis; as well as the issues of entitlement to an increased rating for traumatic left knee arthritis since August 1, 2012, and entitlement to an increased rating for left knee instability since June 9, 2011, are remanded and addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has been assigned a temporary total disability rating for traumatic left knee arthritis, status post total left knee replacement from June 9, 2011, to August 1, 2012. 2. Prior to June 9, 2011, traumatic left knee arthritis was not manifested by either extension limited to 15 degrees or flexion limited to 30 degrees. 3. For the duration of the appeal period, traumatic right knee arthritis was not manifested by either extension limited to 15 degrees or flexion limited to 30 degrees. 4. Prior to June 9, 2011, left knee instability was no more than slight. 5. For the duration of the appeal period, right knee instability has been no more than slight. 6. By rating decision dated in October 2011, service connection was granted for hemorrhagic prostatitis, status post radiation treatment for prostate cancer; there is no remaining case or controversy pertaining to the Veteran's claim for service connection for prostate cancer. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for traumatic left knee arthritis for the period prior to June 9, 2011, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). 2. The criteria for a rating higher than 10 percent for traumatic right knee arthritis have not been met at any time during the appellate term. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 3. Prior to June 9, 2011, the criteria for a rating in excess of 10 percent for left knee instability were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 4. For the duration of the appellate period, the criteria for a rating in excess of 10 percent for right knee instability were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 5. The claim for entitlement to service connection for prostate cancer is dismissed. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 19.4, 20.101, 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissed Issue In May 2009, the Veteran filed a claim of entitlement to service connection for prostate cancer. In an October 2011 rating decision VA granted entitlement to service connection for hemorrhagic prostatitis, status post radiation treatment for prostate cancer. That decision was a full grant of the benefit sought on appeal with respect to the issue. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Based on the foregoing, the Board finds that there is no remaining case or controversy pertaining to the Veteran's appeal for service connection for prostate cancer. Accordingly, the appeal will be dismissed. Id. II. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2004 and April 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in June 2012. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) VA has also provided all necessary assistance with respect to the increased rating knee claims being decided herein. VA has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate these claims, including requesting information from the appellant regarding pertinent medical treatment he may have received and obtaining such records, and affording him VA examinations during the appeal period. The Veteran was afforded pertinent VA examinations with respect to his knee disabilities, most recently in July 2010 (pertaining to the right knee only). Although the July 2010 VA examiner did not have the Veteran's claims file to review, the examiners provided sufficient detail for the Board to make a decision with respect to the periods addressed herein. The appellant was also provided with the opportunity to attend a Board Hearing which he attended in January 2013. At that hearing the Veteran was provided notice of the elements pertinent to his increased rating claims and ensured that all pertinent evidence was on file. The Veteran's contentions and his pertinent knee symptomatology were discussed and are part of the transcript. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. Hence, VA has fulfilled its duty to notify and assist the appellant in his claims being decided herein. Adjudication of these claims at this juncture poses no risk of prejudice to the appellant. Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. III. Analysis Facts The Veteran's service treatment records show treatment for the right and left knees due to football injuries. In October 1979, the RO granted entitlement to service connection for "injury, both knees, with traumatic arthritis, left knee," and assigned a noncompensable rating. In a March 1980 rating decision VA increased this rating to 10 percent. In May 2003, the RO assigned separate 10 percent ratings for traumatic arthritis of each knee. In July 2004, the Veteran filed a claim of entitlement to increased ratings for his service-connected right and left knee arthritis disabilities. At a QTC examination in August 2004, the Veteran reported increasing pain over the years and said he was presently undergoing knee injections every six months. He said he took Motrin daily. The disorder reportedly did not result in any time lost from work, but the Veteran did report that from a functional impairment standpoint he had difficulty doing his job as a Deacon in his church. On examination the Veteran had an abnormal gait, and he walked with a cane and limped. It was noted that he required a left knee brace for ambulation to stabilize the joint. The general appearance of the right knee joint was abnormal with findings of permanent tibial tuberosities. Slight swelling was noted on both sides. Range of motion study revealed flexion to 70 degrees on the right with pain at 70 degrees, and to 90 degrees on the left with pain at 90 degrees. The examiner reported that range of motion was additionally limited on each side by pain, weakness, lack of endurance and incoordination, but not fatigue. Drawer test and McMurray's test on both the right and left sides were abnormal with slight instability. There was also crepitus on both sides. VA outpatient records in 2004 and 2005 note that pain and osteoarthrosis involving the knees were active problems and that the Veteran was receiving Synvisc injections as needed. According to an August 2004 record, active range of motion in the left and right knees was from 0 to 95 degrees. There was no varus /valgus instability. The left knee was noted to be worse than the right. These records include a March 2005 record showing that the Veteran was still having a lot of knee pain. By rating decision in March 2005, the RO continued separate 10 percent ratings for the Veteran's right and left knee arthritis, as well as separate 10 percent ratings for right and left knee instability. In the March 2005 notice of disagreement, the Veteran disagreed with the 10 percent ratings for arthritis in each knee stating that those ratings were inadequate. He pointed out that the examiner stated that pain had a major functional impact. The Veteran testified at an April 2006 Decision Review Officer hearing that he wore a left knee brace which helped relieve the pain when walking or exerting himself up or down stairs. He said the brace helps relieve pain due to weight. He said he also used a cane to take pressure off the left knee and for stability. He reported slight swelling of both knees. He remarked that the knee pain sometimes woke him up at night but Naproxen eased the pain. He described his knee problems as "greatly disabling" and "very discomforting". He explained that he was unable to function like he wanted to and had to continue to move the joint in and out to relieve the pain at times. The Veteran reported at a VA examination in August 2006 that he retired from civil service in 2000 after working for 20 years. In reporting the pertinent evidence of record, the examiner remarked that the QTC examiner in August 2004 reported an inappropriate finding that drawer test and McMurray test were abnormal with slight instability. He explained that with respect to McMurry test, this is not a test of stability, but rather of meniscal pathology. On examination the Veteran was observed ambulating into the clinic without assistance. He used a cane in the right hand and had a slight antalgic gait. Both knees revealed prominent tibial tubercles, but otherwise no deformity, discoloration, swelling, erythema, warmth or effusion. The Veteran was only slightly tender to palpation at the left lateral joint line and nontender about the right knee. Active range of motion on the right and left sides showed extension to 0 degrees. Flexion was to 115 degrees on the right and to 105 degrees on the left. The Veteran complained of pain at the extremes of flexion bilaterally. There was no evidence of instability on varus /valgus stress testing, on extension or 30 degrees of flexion, or on Lachman and drawer testing to either knee. Patellofemoral compression test and McMurray test were unobtainable bilaterally due to volitional guarding. The Veteran had bilateral retropatellar crepitus with both active and passive range of motion. The Veteran was diagnosed as having post-traumatic knee arthritis without objective evidence of post-traumatic instability, currently poor examination due to volitional guarding. VA outpatient records in 2010 show that the Veteran presented as needed for a number of left knee Supartz injections due to osteoarthritis. He denied acute left knee swelling, warmth or discoloration. At a March 2010 VA examination the Veteran reported increased instability since his 2006 VA examination. He also reported more problems bending and lifting. He said his left knee was worse than his right and he had more pain under the patellas. He reported having 12 Supartz injections in his left knee which helped. He also said that water aerobics helped. Examination of the right knee revealed no evidence of abnormal weight bearing. There was also no grinding, instability, patellar abnormality, meniscus abnormality or abnormal tendons or bursae. The right knee had limited motion and positive compression rotation. It also had negative compression of the patellofemoral joint. There was no effusion or laxity. The left knee showed evidence of crepitation but not grinding, instability, patellar abnormality or meniscus abnormality. There was decreased motion, and compression and rotation were painful. There was no effusion or laxity. Range of motion on the left side was extension to 5 degrees, and flexion to 80 degrees. There was no objective evidence of pain with active motion on the right side. Right side range of motion was from extension to 5 degrees, and flexion to 122 degrees. There was objective evidence of pain following pertinent motion and no additional limitations after three repetitions of range of motions. There was also no joint ankylosis. Other significant physical findings included bilateral loss of normal knee valgus. X-rays revealed severe tricompartmental osteoarthrosis involving the knees, progressive from the previous study. These results were interpreted as showing worsening osteoarthritis. The reason for the Veteran's retirement in 1979 was noted to be eligibility by age or duration of work. Functional effects of the Veteran's knee disabilities on his usual daily activities ranged from mild (shopping, recreation, travel, dressing, toileting and driving) to severe (sports and exercise). A VA outpatient record in June 2010 notes that the Veteran was well known to the orthopedic surgery service and continued to use ambulatory assistive aid and stabilizing and unloader bilateral knee braces for his chronically painful/unstable knees which were severely degenerative in all three compartments. The Veteran indicated that he was not interested in total knee arthroplasties at that time due to his concern about his comorbities. Findings revealed that the Veteran had a slight antalgic gait using a standard walking cane and wearing bilateral medial unloader knee braces. The knees were in varus alignment due to severe medial compartment collapse. Findings were negative for edema, effusion, or discoloration. Active range of motion was from 0 to 120 degrees with patellofemoral crepitus/patellar grind test. Possible pseudo laxity was noted to varus/ valgus stress. The Veteran was assessed as having severe bilateral knee tricompartmental osteoarthritis. In June 2011, the Veteran underwent a total left knee replacement. In October 2011, VA assigned a 100 percent rating for traumatic left knee arthritis, status post left knee arthroplasty from June 9, 2011 to July 1, 2012, and suspended the award of a separate 10 percent rating for left knee instability effective June 9, 2011. By rating decision in February 2012, the RO assigned a 30 percent rating for traumatic arthritis of the left knee effective August 1, 2012. In July 2012, the Veteran underwent a VA orthopedic examination for his right knee only. The Veteran complained of a dull to sharp throbbing right knee pain with occasional swelling and increased pain with walking requiring a knee brace which he had had for two years and a cane that he had for four years. He reported receiving a viscosupplementation injection of the right knee in June 2012. He reported flare ups in the form of increased pain and swelling during cold weather that caused increased stiffness and pain. Range of motion of the right knee revealed flexion to 120 degrees with objective evidence of pain at 100 degrees. Extension was to 0 degrees with no noted limitations due to pain. The Veteran was able to perform repetitive-use testing with three repetitions. He had no additional limitation in range of motion following repetitive-use testing. He had functional loss noted as having less movement than normal, pain on movement, swelling and disturbance of locomotion. Strength was 5/5 on flexion and extension. Anterior, posterior and medial-lateral instability was 1+ (0-5 millimeters). There was no evidence of recurrent patellar subluxation/dislocation. The Veteran had no reported surgery on the right knee. There was x-ray evidence of degenerative arthritis, but not patellar subluxation. The examiner remarked that he did not have the Veteran's claims file to review. At a Board video conference hearing in January 2013, the Veteran testified that prior to undergoing total left knee replacement surgery in June 2011 he had a lot of knee pain as well as limited mobility and difficulty climbing stairs. With respect to the right knee, he said he wore a knee brace to help with ambulation and had difficulty going up stairs. He said his doctors told him to let them know when he was ready to undergo total right knee replacement. Law and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, the United States Court of Appeals for Veterans Claims (Court) has held that "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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Degenerative and traumatic arthritis, established by X-ray findings, are rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion limited to 60 degrees is assigned a noncompensable evaluation, flexion limited to 45 degrees a 10 percent rating, and a 20 percent rating is assigned when flexion is limited to 30 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension limited to 5 degrees is assigned a noncompensable rating, extension limited to 10 degrees is assigned a 10 percent disabling, and extension limited to 15 degrees is assigned a 20 percent rating. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.1, 4.40 and 4.45 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 or 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. Normal range of motion of the knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Instability of the knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. Knee disabilities may also be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263. Under Diagnostic Code 5256, ratings of up to 60 percent are available for ankylosis of the knee. Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocation of the semi lunar cartilage, with frequent episodes of "locking", pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating may be assigned for symptomatic removal of semi lunar cartilage. Under Diagnostic Code 5262, ratings of 10 and 20 percent, respectively, are assigned for malunion of the tibia and fibula with slight or moderate knee or ankle disability respectively. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both limitation of motion due to arthritis and instability, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). The General Counsel subsequently opined in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Code 5257 to warrant a separate rating for arthritis based on X- ray findings and limitation of motion, limitation of motion under Code 5260 or Code 5261 need not be compensable but must at least meet the criteria for a zero percent rating. VA's General Counsel further explained that, if a veteran has a disability rating under Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). Discussion The Veteran has been assigned separate evaluations for right and left knee arthritis and for right and left knee instability. At the outset, the Veteran was most recently evaluated for his right knee disability in July 2012, but he has not been evaluated for his left knee disability since March 2010. Notably, in June 2011, the Veteran underwent left knee total replacement surgery thus indicating a possible change in the severity of his left knee disability. In light of this evidence, the Veteran must be afforded a new and contemporaneous VA examination in order to properly evaluate the severity of his left knee arthritis since August 1, 2012, and left knee instability since June 9, 2011. Accordingly, the issues presently being decided today with respect to the Veteran's left knee arthritis and left knee instability evaluations are limited to the pertinent periods. The rating warranted for his right knee disability will be addressed for the duration of the appeal period. With respect to arthritis of the right and left knees, the Veteran has been assigned 10 percent evaluations for periarticular pathology productive of painful motion in each knee. 38 C.F.R. § 4.59. In order to warrant higher evaluations under the limitation of motion codes, there must be the functional equivalent of limitation of flexion to 30 degrees and/or limitation of flexion to 15 degrees. Applying the facts in this case to the criteria set forth above, the Board finds that the Veteran's right and left knee arthritis is appropriately rated as 10 percent disabling for each knee. Neither knee disorder warrants higher ratings under the limitation of motion codes, even when functional loss is considered due to symptoms such as pain. This is so based on the actual limitation of knee motion demonstrated during the pertinent appeal periods. In this regard, the Veteran demonstrated flexion at an August 2004 QTC examination to 70 degrees on the right and 90 degrees on the left. An August 2004 VA outpatient record revealed flexion to 95 degrees. At the August 2006 VA examination, the Veteran demonstrated flexion to 115 degrees on the right and 105 degrees on the left. At the March 2010 VA examination the Veteran demonstrated flexion to 122 degrees on the right and to 80 degrees on the left. He also demonstrated flexion to 120 degrees at a June 2010 VA outpatient study, and in July 2012. Pain was noted at the end ranges of motion at the examinations. Thus, while these findings show some limitation of flexion with pain, there is no evidence demonstrating that at any time either the Veteran's right or left knee arthritis caused the functional equivalent of a limitation of flexion to 30 degrees or less. The Board has considered the Veteran's reports of significant pain and functional limitations such as climbing stairs, in addition to demonstrated objective evidence of painful motion on examination and other Deluca factors noted at the October 2004 VA examination as including weakness, lack of endurance, and incoordination. The examiners, however, did not provide any additional loss in terms of specific degrees of limitation of motion due to these factors. In short, there is no reliable evidence that any Deluca factor functionally limits the right or left knee to the functional equivalent of limitation of flexion to 30 degrees or less. With respect to extension, actual limitation of motion findings show that the Veteran demonstrated normal, i.e., extension to 0 degrees in each knee at the VA examination in August 2006. Extension was limited to five degrees in each knee at the VA examination in March 2010. On each occasion pain was noted at the end ranges of motion at both examinations. He also demonstrated extension to 0 degrees in the right knee at the July 2012 VA examination. While the Veteran's assertions as to the frequency and extent of his pain are arguably credible and consistent with objective findings of pain noted on the various VA examination reports and outpatient records, there is no reliable evidence that any Deluca factor functionally limits the right or left knee to the functional equivalent of limitation of extension to 15 degrees or higher. As the Veteran has not demonstrated an actual limitation of either flexion or extension to a compensable degree under either Diagnostic Code, entitlement to an increased evaluation is not warranted for either knee during the respective terms addressed in this decision. 38 C.F.R. § 4.71a, Codes 5260, 5261. Regarding the rating assigned each knee for instability. as noted, the Veteran is assigned separate 10 percent ratings for slight instability in each knee. It should be stated at the outset that findings with respect to instability are not consistent. To begin with, findings at the August 2004 QTC examination revealed slight instability. It was noted at this examination that the Veteran walked with a cane and wore bilateral knee braces. There is also a June 2010 VA outpatient record noting that the Veteran continued to use ambulatory aid and stabilizing and unloader bilateral knee braces for his chronically painful/unstable knees. Significantly, an August 2006 VA examiner found no objective clinical evidence of knee instability. This examiner went on to report that the QTC findings in August 2004 noting that drawer tests and McMurray tests were abnormal with slight instability were "inappropriately documented". He explained that McMurray test is not a test of instability, but rather a test of meniscal pathology. There is also the March 2010 VA examiner's report that there was no objective evidence of instability in either knee. Thus, in light of the evidence above showing a questionable error in finding slight instability in the August 2004 QTC examination report, the VA examination reports of August 2006 and March 2010 finding no objective findings of instability, and the June 2010 outpatient record noting instability, but not containing objective findings, the Board finds that the evidence preponderates against entitlement to a higher rating due to instability for either knee. Regarding Diagnostic Code 5258, neither of the appellant's knee disorders is manifested by a dislocation of semi-lunar cartilage. Hence, an analogous rating is not warranted under this code. Moreover, in the absence of evidence of disability comparable to ankylosis or impairment of the tibia or fibula, Diagnostic Codes 5256 or 5262, respectively, are not applicable. 38 C.F.R. § 4.71a. For the reasons articulated, the preponderance of the evidence is against entitlement to ratings higher than 10 percent for either left knee arthritis or left knee instability for the period prior to March 2, 2010, and against entitlement to an increased evaluation for right knee arthritis and instability for entire appellate term. As the preponderance of the evidence is against these claims, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b). In arriving at this conclusion, the Board has considered whether assignment of "staged" ratings under Hart, was appropriate. Lastly, the Board has considered whether referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is indicated. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether the application an extraschedular rating is for application. In this case, however, there is no evidence showing an exceptional or unusual disability picture that would obviate the application of the regular rating criteria in this case. The Veteran's left knee arthritis prior to August 1, 2012, his left knee instability prior to June 9, 2011, and his right knee arthritis and instability for the entire appellate term are productive of impairment, but not in any way by impairment that is not addressed by applying the established rating criteria. Hence, the level of disability and symptomatology are adequately contemplated by the applicable schedular criteria. Therefore, the criteria are not inadequate for rating purposes in this case. Moreover, as far as the Veteran retired due to age a referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2012) is not warranted. ORDER Entitlement to an evaluation greater than 10 percent for traumatic left knee arthritis for the period prior to June 9, 2011, is denied. Entitlement to an evaluation greater than 10 percent for traumatic right knee arthritis is denied for the duration of the appeal period. Entitlement to an evaluation greater than 10 percent for left knee instability is denied for the period prior to June 9, 2011. Entitlement to an evaluation greater than 10 percent for right knee instability is denied for the duration of the appeal period. The claim of entitlement to service connection for prostate cancer is dismissed. REMAND With respect to the Veteran's service connected left knee arthritis and instability, the evidence shows that he underwent a total right knee replacement in June 2011. At his January 2013 hearing the Veteran testified that he was still healing from the surgery and that the knee was still giving him some trouble. Accordingly, the Veteran should be afforded a new VA orthopedic examination for the purpose of accurately assessing the level of severity of his service-connected left knee disability. 38 U.S.C.A. § 5103A(d). The Board notes that RO discontinued the Veteran's 10 percent rating for left knee instability in June 2011, and assigned the Veteran a 30 percent rating for traumatic arthritis left knee, status post left knee arthroscopy, effective in August 2012. The Board finds that additional development is necessary in order to properly decide the Veteran's claims for service connection for hypertensive vascular disease, sleep apnea, and a back disability. Such development includes obtaining outstanding pertinent evidence that has been identified, see 38 U.S.C.A. § 5103A(b),(c); 38 C.F.R. § 3.159, and affording the Veteran new VA examinations in order to accurately assess the nature and etiology of his claimed disabilities. With respect to examinations, VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability may be associated with service is low. Id. at 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). Lumbar Spondylosis The Veteran's service treatment records show treatment on three occasions for back pain. He was assessed in May 1971 as having probable sciatic neuritis, in May 1977 as having back pain for one to two months, and in April 1979 as having a lumbosacral strain. Lumbosacral x-rays taken in April 1979 were normal. The Veteran's post service diagnosis is multilevel degenerative disc disease with spinal stenosis. The record contains conflicting medical opinions regarding a nexus between the Veteran's present back disability and service. In this regard, there are three VA opinions, dated in April 2011, October 2009 and March 2012, respectively, that negate a nexus between the Veteran's present back disability and service. The Veteran, however, asserts that the VA examiners did not properly consider all of the Veteran's in-service treatment for back pain. More specifically, the April 2011 VA examiner reported that the Veteran had only one medical visit in service for back pain and incorrectly assumed that a visit that the appellant had made in service in 1979 took place 10 months post service. The October 2009 VA examiner reported that the Veteran had two medical visits in service for back pain and the March 2012 VA examiner reported that he had just one visit in service. As noted above, the Veteran's service treatment records show that he had three medical visits in service for back pain. Thus, the VA opinions do not appear to have considered all of the Veteran's in-service treatment for back pain. In addition to these negative opinions, there is a February 2013 favorable opinion from the Veteran's chiropractor that supports an association between the appellant's back disorder and service. In light of evidence of in-service treatment for back pain, a present back disability, and conflicting evidence with respect to a nexus to service, the Board finds that a remand for a VA examination regarding the nature and etiology of any current back disability is warranted based on an accurate factual background. McLendon. Hypertensive Vascular Disease The Board similarly finds that a remand for a VA examination is warranted in order to determine the nature and etiology of the Veteran's claim for hypertensive vascular disease. This is based on the Veteran's service treatment records that reflect a few elevated systolic readings and include an electrocardiogram (EKG) dated in October 1978 showing possible right ventricular hypertrophy. It is also based on post service records showing that the Veteran was diagnosed as having hypertension in 1991, and his assertions that his in-service elevated readings and EKG results support his claim for service connection for hypertensive vascular disease. McLendon. Sleep Apnea The Veteran's service treatment records do not contain any notation of sleep apnea, but he asserts that he was told in service that he snored in his sleep and stopped breathing. He attributes sleep apnea to his exposure to fire fighting chemicals in service. His military occupational specialty in service was a fire protection supervisor. The Veteran reports that post service he underwent surgery in the early to mid 1990s for sleep apnea. More specifically, he reported undergoing a tonsillectomy in 1993 with palate work. He also reported undergoing nasopharyngeal surgery in 1995 at the Brooks Army Medical Center. These identified treatment records are not on file. Indeed, a review of the evidence shows no records on file from Brooks Army prior to October 1996. Accordingly, an attempt should be made to obtain these identified, pertinent records. 38 U.S.C.A. § 5103A(c). Also, a VA examination would be useful in ascertaining whether there is an etiological relationship between the Veteran's sleep apnea and his asserted exposure to fire fighting chemicals. 38 U.S.C.A. § 5103A(d). Lastly, the claims file or the Veteran's Virtual VA folder should be updated to include recent pertinent VA treatment records dating from May 2012 to present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify any relevant private, Army or VA treatment records regarding his claimed sleep apnea, hypertension, and lumbar disorders, as well as his service connected left knee disorder, that have not already been obtained. This specifically includes records from the Veteran's private chiropractor, Dr. Mooring, dating since May 1971; records from the Brooks Army Medical Center from 1990 through 1996; and updated VA records from May 2012 to present. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA orthopedic examination in order to more accurately determine the current severity of his left knee arthritis and instability, to include residuals of a total knee replacement. Following completion of the examination, and in accordance with the latest AMIE worksheet for evaluating arthritis of the knee, status post total knee replacement, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well an analysis addressing the nature and extent of any left knee disability. The examiner must specifically comment regarding the nature of any and all limitation of motion, as well as any functional loss associated with pain, weakened movement, excess fatigability, instability, incoordination, swelling, and deformity or disuse atrophy. The examiner must also address the nature and extent of any left knee subluxation or instability. The examiner must discuss factors associated with the disability, such as objective indications of pain on pressure or manipulation. In addition, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his left knee disorders. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder, access to Virtual VA and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed, and specify the dates encompassed by the Virtual VA records. 3. The AMC/RO should also arrange for a medical examination of any current lumbar disorder, hypertensive vascular disease, and sleep apnea. The purpose of the examination is to secure medical opinions directly addressing whether the Veteran is now suffering from these disabilities, and if so, whether it is at least as likely as not (i.e., is there a 50 percent or higher probability) that such disabilities are related to his military service. The examiner must also address whether it is at least as likely as not that any diagnosed lumbar disorder has been permanently aggravated by the appellant's bilateral knee disorders. The complete medical rationale for any opinions expressed should be provided. The examiner must be provided access to the appellant's claims folder, Virtual VA and a copy of this remand for review before the examination. The examination report should consider all findings necessary to evaluate the claim and the examiner is asked to indicate that he or she has reviewed the claims folder. 4. The Veteran is to be notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 5. Thereafter, the RO or the AMC must readjudicate the issue of entitlement to a higher rating for the Veteran's left knee arthritis since August 1, 2012, the issue of entitlement to an increased rating for left knee instability since June 9, 2011, and the issues of entitlement to service connection for sleep apnea, hypertensive vascular disease, and a lumbar disorder, to include spondylosis, in light of all pertinent evidence and legal authority. The RO must specifically consider the appellant's entitlement to secondary service connection for any diagnosed lumbar disorder. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue the appellant and his representative a Supplemental Statement of the Case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate consideration. The appellant and his representative have 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs