Citation Nr: 1316153	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  03-32 126A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder.

2.  Whether new and material evidence has been received to reopen a claim for service connection for a bilateral foot disorder.

3.  Entitlement to service connection for a bilateral hip disorder.

4.  Entitlement to service connection for an eye condition, to include as secondary to service-connected hypertensive heart disease.

5.  Entitlement to a compensable disability rating for renal insufficiency (claimed as kidney problems) secondary to medication taken for hypertensive heart disease.

6.  Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD) with residuals.

7.  Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia patella with spurs and decreased range of motion.

8.  Entitlement to an evaluation in excess of 10 percent for instability of the left knee for the period on and after December 20, 2011, and entitlement to a compensable evaluation for instability prior to that date.

9.  Entitlement to a disability rating in excess of 60 percent for hypertensive heart disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from June 1984 through April 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2003 and June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In the February 2003 rating decision, the RO denied claims for a compensable disability rating for renal insufficiency and higher disability ratings for the Veteran's right knee (rated as 10 percent disabling), left knee (rated as 10 percent disabling), and hypertensive heart disease (rated as 60 percent disabling).  A timely Notice of Disagreement (NOD) as to these issues was received from the Veteran in March 2003.  After a Statement of the Case (SOC) was issued in November 2003, the Veteran perfected his appeal in December 2003, via VA Form 9 substantive appeal.

In the June 2005 rating decision, the RO declined to reopen the Veteran's previous claim of service connection for a right foot condition and denied his original claim for service connection for a bilateral hip condition.  In the same rating decision, the RO determined that new and material evidence had been received to reopen a claim for service connection for a left foot condition, however, denied the underlying service connection claim on the merits.  A timely NOD as to those issues was received in July 2005.  After an SOC was issued in May 2006, the Veteran perfected his appeal in October 2006, via VA Form 9 substantive appeal.

The Veteran testified during an August 2010 Travel Board hearing.  A transcript of the testimony offered at this hearing has been associated with the record.

The appeal in this matter initially included issues of the Veteran's entitlement to service connection for hearing loss, and tinnitus.  Although the Veteran initiated a timely appeal of the RO's denial of service connection for hearing loss by filing a timely NOD in October 2006, he did not perfect his appeal in connection to that issue by filing a substantive appeal.   Service connection for tinnitus was granted in full by the Board in a March 2011 decision.  Accordingly, these issues are not on appeal before the Board.

In an October 2012 rating decision, the RO granted a separate rating of 10 percent for left knee instability, effective December 20, 2011.  Although the text of the decision notes a date of December 20, 2012, the cover letter and attached code sheet make it clear that an effective date of December 20, 2011, was awarded.  The Veteran subsequently disagreed with the effective date, and the Board has considered whether such matter should be remanded to the  Agency of Original Jurisdiction (AOJ) for issuance of a Statement of the Case.  However, the Board finds that the matter of entitlement to a separate rating for left knee instability is part and parcel of the claim of entitlement to an increased evaluation left knee chondromalacia patella that has already been perfected for appeal and is currently before the Board.  The issue has been listed on the title page accordingly.

The issues of the veteran's entitlement to service connection for a low back disorder; service connection for a bilateral foot disorder, service connection for a bilateral hip disorder; service connection for an eye condition, to include as secondary to service-connected hypertensive heart disease; and entitlement to a disability rating in excess of 60 percent for his service-connected hypertensive heart disease are 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.  A February 2003 rating decision denied the Veteran's claims for service connection for a low back disorder and a bilateral foot disorder; notice of that decision was mailed to the Veteran on February 28, 2003; and the Veteran did not subsequently perfect a timely appeal of that decision.

2.  The Board received the Veteran's current request to reopen his claim for service connection for a bilateral foot disorder in October 2004 and his claim for service connection for a low back disorder in February 2005.

3.  The evidence associated with the claims file since the RO's February 2003 rating decision, when considered with the evidence previously of record, relates directly to previously unestablished elements of the Veteran's claims for service connection for a low back disorder and a bilateral foot disorder, and moreover, raises a reasonable possibility of substantiating the Veteran's claim.

4.  The Veteran's renal insufficiency has been manifested by hypertension with systolic pressure that is predominantly over 160 mmHG and diastolic pressure that is predominantly over 100 mmHg, blood urea nitrogen (BUN) levels no higher than 25 mg%, and creatinine levels no higher than 1.7 mg%; however, has not been manifested by hypertension with diastolic pressure that is predominantly over  110 mmHg, lethargy, weakness, anorexia, weight loss or gain, or markedly decreased function of the kidney or other organ systems that has been associated with his renal insufficiency.

5.  The Veteran has current urinary frequency and voiding dysfunction; however, these have not been shown to be associated with his service-connected renal dysfunction.

6.  The Veteran's right knee degenerative joint disease has been manifested by full right leg flexion and right leg flexion to no less than 100 degrees; however, has not been manifested by ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, genu recurvatum, or instability.

7.  The Veteran's left knee left knee chondromalacia patella with spurs has been manifested by loss of no more than 12 degrees of left leg extension and left leg flexion to no less than 95 degrees; however, has not been manifested by ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

8.  On and after December 20, 2011, but no earlier, the Veteran's left knee chondromalacia patella with spurs has been manifested by no more than slight instability.


CONCLUSIONS OF LAW

1.  The additional evidence associated with the claims file since the RO's final March 2002 decision is new and material, and the Veteran's claim for service connection for a low back disorder is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

2.  The additional evidence associated with the claims file since the RO's final February 2003 decision is new and material, and the Veteran's claim for service connection for a bilateral foot disorder is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The criteria for a 30 percent disability rating, and no more, for renal insufficiency have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.115a (2012).

4.  The criteria for a disability rating in excess of 10 percent for right knee degenerative joint disease and residuals have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261 (2012).

5.  The criteria for a disability rating in excess of 10 percent for left knee chondromalacia patella with spurs and decreased range of motion have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261 (2012).

6.  Entitlement to an evaluation in excess of 10 percent for instability of the left knee for the period on and after December 20, 2011, and entitlement to a compensable evaluation for instability prior to that date, is denied.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011) and 38 C.F.R.  §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In the context of a claim to reopen a final decision on the basis of new and material evidence, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA requires that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes the type of evidence and information that would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.  A claimant is thereby notified that the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied.  Failure to provide this notice is generally prejudicial.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

Regarding the issues of whether new and material evidence was received to reopen the Veteran's claims for service connection for a low back disorder and a bilateral foot disorder, given the favorable action taken below with regard to those issues, the Board finds that any deficiency in notice or assistance is not prejudicial at this time.

A subsequent March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  After issuance of this letter, and after the Veteran was given an opportunity to respond, the Veteran's claims for service connection for bilateral foot and hip disorders were readjudicated in a May 2006 Statement of the Case (SOC).  Hence, the Veteran is not shown to be prejudiced by the late timing of this notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

Concerning the Veteran's claims for higher disability ratings for his right and left knee disabilities and renal insufficiency, a May 2002 pre-rating letter provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  These claims were subsequently adjudicated in the RO's February 2003 rating decision.  

A March 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the RO readjudicated the Veteran's claims for higher ratings for his knee disabilities in an October 2012 supplemental SOC (SSOC) reflects readjudication of the claim.  Hence, the Veteran is not shown to be prejudiced by the late timing of this notice in the context of his claims for higher ratings for his renal insufficiency and knee disabilities.  See Mayfield, 20 Vet. App. at 543; see also Prickett, 20 Vet. App. 370 at 376.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims.  The Veteran's service treatment records, claims submissions, lay statements, VA treatment records, identified and relevant private treatment records, and social security records have been associated with the record.  The Veteran was also afforded VA examinations for his renal insufficiency in October 2001, December 2002, June 2003, February 2005, August 2008, and December 2011.  Additional VA examinations for his knees were performed in October 2001, December 2002, February 2005, and December 2011.  In September 2012, VA obtained a medical expert's review of the claims file and the expert's opinions concerning the Veteran's kidney disability.  These opinions, along with the other evidence of record, are fully adequate for the purposes of determining the nature, etiology, and severity of the disabilities adjudicated herein.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).
 
Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.


II.  New and Material Evidence

A.  Low Back Disorder

The Veteran's initial claim for service connection for a low back disorder and bilateral foot disorder was denied in an August 1987 rating decision on the grounds that the evidence available at that time did not show the existence of a current back disorder or the occurrence of a back injury during his active duty service.

In November 1996, the Veteran sought to reopen his service connection claim.  In a November 1997 rating decision, the RO determined that new and material evidence was not received and declined to reopen the claim.

In December 1999, the Veteran sought again to reopen his claim for service connection for a low back disorder.  Once again, in a June 2000 rating decision, the RO declined to reopen the claim.

In June 2001, the Veteran filed another request to reopen his claim.  This time, in a March 2002 rating decision, the RO determined that new and material evidence had been received to reopen the Veteran's claim; however, denied the underlying service connection claim on the bases that the evidence did not show that the Veteran sustained a back injury during service, and, that the Veteran's current back disorder was related to his active duty service.  

In April 2002, the Veteran filed yet another request to reopen his claim for service connection for a low back disorder.  In a February 2003 rating decision, the RO again denied the Veteran's claim on the continuing grounds that the evidence did not show the occurrence of an in-service back injury or any relationship between the Veteran's current back disorder and his active duty service.  The Veteran did not appeal this decision.  Accordingly, the RO's February 2003 determination is final.  38 U.S.C.A. § 7105(c).

The pending request to reopen the Veteran's claim for service connection for a low back disorder was received by VA in February 2005.  In a June 2005 rating decision, the RO determined that yet additional new and material evidence had been obtained since the prior March 2002 decision, and hence, reopened the Veteran's claim.  The underlying service connection claim was denied again, on the ongoing bases that there was no evidence of an in-service back injury, a current back disability, or any relationship between a current back disability and his active duty service or service-connected knee disabilities.  As noted above, the Veteran has appealed this decision and this matter is now before the Board for its consideration.

Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered.  38 U.S.C.A. §§ 7104, 7105.  Under 38 U.S.C.A. § 5108 , however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."

Under 38 C.F.R. § 3.156(a) , "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim."  Such evidence must also "raise a reasonable possibility of substantiating the claim."

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the RO's final March 2002 decision, the evidentiary record consisted of multiple claims submissions and lay statements from the Veteran in which he alleged generally that he was experiencing back problems.  The record at that time also included the Veteran's service treatment records, which include a November 1984 treatment record which reflects that the Veteran was complaining of back pain for two months and that he was diagnosed at that time with scoliosis.  The post-service treatment records available at the time of the March 2002 decision consisted of VA examination reports dated June 1987 and August 1988 which state that no abnormalities of the back were noted during either examination.  However, a report of x-rays obtained in June 1987 reveals a finding of slight narrowing of the L5-S1 disc space.  Records from Ireland Army Community Hospital include an August 1992 record which reflects subjective complaints of back pain.  An October 2001 VA examination report states that although the Veteran had been previously reporting back pain, on examination, the Veteran actually pointed to symptoms in the left iliac crest in the posterior axillary line (the left hip).  An examination of the back revealed diminished thoracolumbar motion, but no other abnormalities specific to the back. VA treatment records dated from November 1996 through May 2001 did not reflect any complaints, findings, diagnoses, or treatment relevant to the Veteran's back.

Since the RO's March 2002 rating decision was issued, VA has obtained volumes of evidence which includes additional private and VA treatment records, multiple VA examinations, and dozens of lay statements from the Veteran.  The post-March 2002 VA examinations do not pertain to the Veteran's back.  In his April 2002 claim, the Veteran alleged that he sustained injuries to his back during service after a tent pole fell across his neck, shoulders, and back.  He also alleged that his claimed back problems may be related to his service-connected knee disabilities.  VA treatment records, which pertain to treatment received by the Veteran from March 2002 through August 2011, include a November 2005 record which reflects complaints of back pain. The subsequent VA treatment records reflect ongoing complaints of back pain.  Private hospital records from Moore Regional Hospital dated December 2007 reflect that the Veteran reported having back pains for the past three weeks.  Radiological studies showed "significant" fractures in the thoracic and lumbar spines.

The evidence obtained since the final March 2002 decision clearly shows the presence of a current thoracic and lumbar spine disorder.  Considered in conjunction with the Veteran's April 2002 assertions of an in-service injury, this newly obtained evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection for a low back disorder.  Hence, the Board finds that new and material evidence has been received.  Accordingly, the Veteran's claim for service connection for a low back disorder is reopened.  This claim will next be addressed by the Board on a de novo basis, an action that will not prejudice the Veteran in light of the ultimate outcome.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

B.  Bilateral Foot Disorder

The Veteran's original claim for service connection for a bilateral foot disorder was denied by the RO in a June 2000 rating decision.  As basis for its denial, the RO determined that the evidence available at that time did not show a relationship between the Veteran's foot disorder (shown by the evidence as being flat feet) and his active duty service.  Pursuant to changes in the law under the Veteran's Claims Assistance Act, VA reopened the Veteran's prior claim for service connection for a bilateral foot disorder; but, denied service connection in a December 2000 rating decision on the continuing basis that the evidence did not show a foot disability during service or any relationship between the Veteran's current foot disorder and his active duty service.  The Veteran did not appeal this decision.  Thus, the RO's December 2000 determination is final in relation to the Veteran's claim for service connection for a left foot disability.  38 U.S.C.A. § 7105(c).

The Veteran sought to reopen his claim for service connection for a right foot disability in April 2002.  In a February 2003 rating decision, the RO reopened the claim; however, denied it on the basis that the evidence did not show a current right foot disability.  The Veteran also did not appeal the February 2003 determination.  Accordingly, the February 2003 decision is final in relation to the Veteran's claim for service connection for a right foot disability.  38 U.S.C.A. § 7105(c).

The pending request to reopen his claims for service connection for claimed disabilities in both feet was received from the Veteran in October 2004.  In a June 2005 rating decision, the RO reopened the claims for both feet; however, denied the underlying claims on their merits.  In support of its denials, the RO determined that the evidence did not show the existence of a bilateral foot condition that was related to his active duty service or to his service-connected knee disabilities.  Although the RO determined that the evidence warranted reopening of the Veteran's claims, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  Accordingly, the Board must now consider whether new and material evidence has been received to reopen service connection claims for either foot.

Multiple claims submissions and statements that were available at the time of both the December 2000 and the February 2003 decisions reflect general assertions of pain in both feet.  Service treatment records that were also available at the time of both decisions indicate the presence of mild pes planus at the time of his March 1984 enlistment examination.  The remaining service treatment records did not reflect any complaints, treatment, findings, or diagnoses relevant to either of the Veteran's feet.  Post-service treatment records available at the time of the December 2000 and February 2003 decisions included private hospital records from Moore Regional Hospital dated June 1998, which reflect complaints of swollen feet and difficulty wearing steel-toed boots for work.  No diagnosis related to the feet is indicated in those records.  VA treatment records available at the time of both decisions id not relate to any treatment or complaints concerning either of the Veteran's feet.

Since the RO's December 2000 and February 2003 decisions, VA has obtained records from the Social Security Administration, which include additional VA treatment records dated from 1988 through 2005.  A July 1998 VA treatment record reflects that the Veteran was diagnosed with tarsal tunnel syndrome.  Follow-up records from August 1998 reflect that the Veteran was continuing to complain of bilateral foot pain which was diagnosed as neuralgia.  VA also obtained additional VA treatment records dated through August 2011.  An October 2010 record reflects that the Veteran continued to complain of pain and swelling in his feet.  Apparently, no diagnosis was given at that time.  Multiple statements received from the Veteran through January 2013 continue to report ongoing foot pain that was causing difficulty with standing and walking for long periods of time.  In his January 2013 statement, he alleged that his foot problems were secondary to his service-connected knee disabilities.

The evidence obtained since the December 2000 and February 2003 decisions show that the Veteran has current disorders in his feet that were diagnosed in 1998 as tarsal tunnel syndrome with associated neuralgia.  Subsequent treatment records and statements from the Veteran show that the Veteran has continued to experience foot problems since that time.  This newly obtained evidence, when considered in conjunction with the previously available service treatment records, which indicate pre-service pes planus, raises a reasonable possibility of substantiating the Veteran's claims for service connection for disabilities in both feet.  Hence, the Board finds that new and material evidence has been received.  Accordingly, the Veteran's claims for service connection for bilateral foot disabilities are reopened and will also be addressed by the Board on a de novo basis.  See Bernard, 4 Vet. App. at 394.

III.  Increased Disability Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In cases where there is a question as to which of two ratings applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2012).

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA's defined and consistently applied policy is to administer the law under a broad interpretation; however, in a manner that is consistent with the facts shown in each case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

The Veteran's claims for higher disability ratings for his service-connected right knee and left leg disabilities were received in January 2002.  The Veteran's claims for service connection for an eye disorder, to reopen his prior service connection claim for a back disorder, and for a higher disability rating for service-connected renal insufficiency were received in April 2002.  His claim for a higher disability rating for service-connected hypertensive heart disease was received in October 2002.  His claims to reopen his prior claims for service connection for bilateral foot disorders and low back disorder, and initial claim for service connection for a bilateral hip disorder were received in February 2005.

In a February 2003 rating decision the RO continued 10 percent evaluations for residuals of a left leg injury and DJD of the right knee with residuals, as well as a 60 percent evaluation for hypertensive heart disease and a compensable evaluation for renal insufficiency.  In this rating decision, the RO also denied entitlement to service connection for an eye condition as secondary to service-connected hypertensive heart disease. 

A.  Renal Insufficiency

The Veteran's claim for a compensable disability rating for service-connected renal insufficiency was received by VA in April 2002.  Accordingly, the Board's relevant focus in considering this claim is upon the evidence concerning the severity of his renal insufficiency from April 2001 to the present.

The Veteran alleged in his April 2002 claim and in subsequent claims submissions and statements that he has experienced pain in his sides and nocturia which he believed were related to his renal insufficiency.  In statements dated February and April of 2002, he stated that he was urinating three or four times per night.  In a May 2004 statement, he alleged that he was required to use the bathroom four or five times per night.

Throughout the course of this appeal, the Veteran's renal insufficiency has been assigned a noncompensable (zero percent) disability rating pursuant to Diagnostic Code (DC) 7599-7541.  The hyphenated diagnostic code indicates that the Veteran's kidney -related disability is an unlisted disability, for which specific rating criteria do not exist, and hence, has been rated by analogy under DC 7541 and in accordance with the rating criteria for renal dysfunction.

Under the rating criteria for renal dysfunction, a noncompensable disability rating is assigned for renal dysfunction manifested by albumin and casts with history of acute nephritis; or hypertension non-compensable under DC 7101.  A 30 percent disability rating is assigned or manifestations which include albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101.  A 60 percent disability rating is warranted where renal dysfunction is manifested by constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension that is at least 40 percent disabling under DC 7101.  An 80 percent disability rating is appropriate for manifestations of persistent edema and albuminaria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  A maximum 100 percent disability rating is assigned where renal dysfunction has required regular dialysis, or has precluded more than sedentary activity from one of the following:  persistent edema or albuminaria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular.  38 C.F.R. § 4.115a.

Initially, the Board observes that the presence of hypertension may serve as a basis for a compensable disability rating under the criteria for renal dysfunction.  To reiterate, a 30 percent disability rating may be awarded for renal dysfunction manifested by hypertension that is at least 10 percent disabling under DC 7101. A 60 percent disability rating may be awarded where there is hypertension that is at least 40 percent disabling under DC 7101.

Under DC 7101, a 10 percent disability rating is assigned for hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly 100 mmHg or more, or; systolic pressure predominantly 160 mmHg or more, or; minimum elevation for an individual with a history of diastolic pressure predominantly 100 mmHg or more who requires continuous medication for control.  The criteria for hypertensive vascular disease are accompanied by various explanatory notes.  Explanatory Note (1) indicates that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mmHg, or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mmHg, or greater with a diastolic blood pressure of less than 90 mmHg.  Explanatory Note (2) advises raters to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation.  Explanatory Note (3) directs raters to rate hypertension separately from hypertensive heart disease and other types of heart disease.

In this case, VA treatment records dated from 2002 through 2011, hospital records from Moore Regional Hospital dated April 2003 through November 2006, and multiple VA examinations indicate that the Veteran has had longstanding  hypertension shown by multiple blood pressure readings with diastolic pressure above 90 mmHg.  The evidence reflects that the systolic pressure taken in these readings was predominantly over 160 mmHg (as required for a 10 percent disability rating under DC 7101).  Measured diastolic pressure was also predominantly over 100 mmHg (as also required for a 10 percent disability rating under DC 7101). Although the record does contain isolated blood pressure readings where the diastolic pressure was greater than 110 mmHG, the evidence shows that the measured diastolic pressure was predominantly less than 110 mmHg.  Accordingly, the evidence shows that the Veteran's hypertension meets the diagnostic criteria for a 10 percent disability rating under DC 7101; however, does not meet the criteria for a 20 percent rating.  In view of the same, the Board finds that the Veteran meets the criteria for a 30 percent disability rating for renal dysfunction based upon the Veteran's hypertension alone.

Application of the other criteria for renal dysfunction indicates that the Veteran is not entitled to a higher disability rating than 30 percent.  In that regard, the evidence since April 2001 does not reflect any occurrence of albuminaria or edema.  Similarly, the evidence does not show that the Veteran has required any hospitalization or treatment via dialysis for his renal insufficiency.  There is also no indication in the evidence that the Veteran has experienced any definite loss of kidney function, or, that his activity level has been compromised in any way by his renal insufficiency.  In that regard, VA treatment records dated through August 2011 reflect that the Veteran was followed regularly for renal insufficiency; however, the records do not indicate any of the aforementioned manifestations. These manifestations were also not reported or shown during VA examinations of the Veteran's renal insufficiency performed in October 2001, December 2002, June 2003, February 2005, August 2008, and December 2011.  Indeed, during the February 2005 VA examination, the Veteran's renal insufficiency was characterized as being "mild" and subsequent VA examinations do not indicate any change in that status.  Also, private hospitalization records from Moore Regional Hospital dated through November 2006 reflect that the Veteran was admitted at that facility for treatment of various disorders; however, not for renal dysfunction.  Although the Veteran's blood urea nitrogen (BUN) and creatinine levels were monitored during these hospitalizations, there is no indication in those records of any albuminaria, edema, or decrease in kidney function or activity level.  As such, a disability rating higher than 30 percent may not be awarded under DC 7101 on the basis of any of these aforementioned manifestations.

As noted above, higher disability ratings of 80 and 100 percent may be assigned if sufficiently elevated BUN or creatinine levels are shown in the record.  In that regard, an 80 percent may be assigned for renal dysfunction manifested by BUN levels ranging from 40 to 80 mg% or by creatinine levels ranging from 4 to 8 mg%.  A 100 percent rating is assigned where renal dysfunction has been manifested by BUN levels higher than 80 mg% or creatinine levels higher than 8 mg%.  The evidence, which includes the aforementioned VA treatment records, private hospital records, and VA examinations, contains multiple test results which show that the Veteran's BUN level has been measured as being no higher than 25 mg% (measured during his October 2001 VA examination) and, that his creatinine level has never been higher than 1.7 mg% (as shown during hospitalization for headaches at Moore Regional Hospital in April 2003).  Accordingly, a disability rating higher than 30 percent also may not be awarded on the basis of the demonstrated BUN and creatinine levels.

The Board notes that the Veteran reported lethargy, weakness, anorexia, and fluctuating weight marked by loss and gain of 10 pounds on one occasion during his February 2005 VA examination.  Nonetheless, the evidence in the record does not indicate that such symptoms were present at any other time during the appeal period.  In that regard, no such symptoms were reported during previous VA examinations performed in December 2002 or June 2003.  During a subsequent August 2008 VA examination, the Veteran expressly denied having symptoms of lethargy, weakness, anorexia, weight loss or gain.  The Board notes that no such symptoms were reported by the Veteran during his December 2011 VA examination.  Similarly, there is no indication in the VA treatment records from 2002 through 2011 that the Veteran experienced lethargy, weakness, anorexia, weight loss or gain at any time during that time.  Under the circumstances, the lethargy, weakness, anorexia, and fluctuating weight reported during the February 2005 VA examination appears to be anomalous and not consistent with the overall symptomatology associated with the Veteran's renal dysfunction.  As the evidence does not show symptomatology which includes lethargy, weakness, anorexia, or weight gain, a disability rating higher than 30 percent may also not be granted on the basis of those symptoms.

Although the Veteran has not urged the application of any other specific rating criteria for his renal dysfunction, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4.  Schafrath, 1 Vet. App. 589.  In doing so, the Board notes that applicable rating criteria are also available under the criteria for urinary dysfunction.  Speaking generally, disability ratings for urinary dysfunction are based upon the existence and frequency of daytime and nighttime voiding.

The evidence shows that the Veteran has, throughout the course of the relevant appeal period, reported increased nighttime urinary frequency.  During his October 2001 VA examination, he reported generally that he was experiencing nocturia.  During his June 2003 VA examination, the Veteran reported that he was urinating twice during the daytime and five times at night.  He continued to report ongoing nocturia during VA treatment in March 2004.  During the February 2005 VA examination, he reported that he voided three times per day and five to six times per night.  He also reported occasional incontinence, but denied requiring any absorbent material or appliance.  During his August 2008 VA examination, he reported having nocturia that required him to void four or five times per night but denied having incontinence at that time.  During a follow-up VA treatment in October 2010, he reported that he was waking six to eight times at night to urinate.  During his December 2011 VA genitourinary examination, he stated that he was urinating seven or eight times per night and voiding once every one to two hours during the daytime.  This time, he reported incontinence again and that he avoided going places for fear of urinary accidents.  He stated that he carried an extra pair of underwear wherever he went, but continued to deny needing absorbent materials or appliances.  Despite this history of reported urinary frequency and intermittent incontinence, the Board notes that these records do not reflect any opinion that those symptoms were manifestations related to his renal insufficiency.

In September 2012, VA sought a medical expert's claims file review and opinion as to whether it is at least as likely as not that the Veteran's voiding dysfunction and urinary incontinence were caused or aggravated by his service-connected renal insufficiency.  In the report, the expert cited the Veteran's history of complaints concerning urinary frequency and incontinence, as well as key evidence in the record.  The expert noted that the Veteran did not appear to have any symptoms or problems associated with his renal insufficiency, which the expert declared was presently inactive.  The expert concluded that the Veteran's voiding dysfunction was undoubtedly due to a benign prostatic hypertrophy.

The expert's uncontradicted September 2012 opinion is based upon a review of the claims file and an accurate understanding of the Veteran's medical history.  Toward that end, the expert cites the key evidence in the record pertaining to the Veteran's urinary frequency and incontinence, and moreover, recites a medical history that is essentially consistent with that shown in the record.  Accordingly, the Board assigns full probative weight to the expert's September 2012 opinion.  As the evidence does not show that the Veteran's urinary frequency and voiding dysfunction are not manifestations of or otherwise related to his  renal dysfunction, the Board finds that disability ratings under the criteria for urinary frequency or voiding dysfunction are not appropriate in this case.

Under the foregoing analysis, the Veteran is entitled to a 30 percent disability rating, and no more, for renal insufficiency.  To that extent, this appeal is granted.  38 C.F.R. §§ 4.3, 4.7.

B.  Right Knee

The Veteran's claim for a disability rating higher than 10 percent for service-connected right knee degenerative joint disease with residuals was received in January 2002.  Accordingly, the Board's relevant focus in considering this claim is upon the evidence concerning the severity of his right knee disability from January 2001 to the present.

Throughout the course of the appeal period, the Veteran's right knee disability has been rated as being 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5010-5260.  In assigning hyphenated DCs, the number assigned to the residual condition on the basis of which the rating is determined will generally represent injuries.  Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen.  38 C.F.R. § 4.27 (2012).

Under DC 5010, traumatic arthritis is rated under the same criteria as DC 5003, which addresses degenerative arthritis.  Under DC 5003, arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.  When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.

Under DC 5260, which provides the criteria for ratings based upon loss of flexion, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees.  A 20 percent disability rating is in order where leg flexion is limited to 30 degrees.  A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees.

In evaluating the Veteran's right knee disability, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4.  Schafrath, 1 Vet. App. 589.  In doing so, the Board notes that additional criteria for rating knee disabilities are available under DC 5261, which provide the criteria for rating knee disabilities based upon demonstrated loss of leg extension.

Under DC 5261, a 10 percent disability rating is appropriate where leg extension is limited to 10 degrees.  A 20 percent disability rating is in order where leg extension is limited to 15 degrees.  A 30 percent disability rating is appropriate where leg extension is limited to 20 degrees.  A 40 percent disability rating is assigned where leg extension is limited to 30 degrees.  A maximum schedular 50 percent disability rating is awarded where leg extension is limited to 45 degrees.

By way of reference, normal range of motion for the knee is from zero degrees of extension to 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2012).

Other additional criteria for rating knee disabilities are available under DCs 5256 (for ankylosis), 5258 (for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion), 5262 (for impairment of the tibia and fibula), and 5263 (for genu recurvatum).  Nonetheless, as discussed below, the evidence does not show that the Veteran's left knee disability was manifested at any time by ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.  In the absence of such manifestations, these DCs are inapplicable in this case.  Rating criteria for knee disabilities are also provided under DC 5259 (for symptomatic removal of the semilunar cartilage).  Nonetheless, DC 5259 does not provide for a schedular disability rating higher than 10 percent and therefore does not assist the Veteran in obtaining a higher disability rating for his right knee.  Hence, that criteria is also inapplicable in this case.

The Veteran has provided numerous statements over the course of this appeal concerning the state of his right knee.  In summary, these statements allege the existence of pain that disturbed the Veteran's sleep and impaired his ability to drive, stand, or walk for long distances.  In a series of statements received in November 2002, he alleged that he was experiencing a locking sensation in his knees.  In a September 2004 statement, he also alleged that he was experiencing instability and a sensation of "giving way" in his knees.  He continued to report ongoing instability in later statements dated July 2007 and September 2012.

In addition to the foregoing lay assertions, the relevant post-service evidence includes an October 2001 VA examination, during which, the Veteran reported bilateral knee pain, locking, and stiffness after long periods of sitting.  He reported that he wore a brace on his right knee for improved stability.  During the examination, the right knee was normal in appearance and did not show any objective signs of redness, swelling, abnormality to varus or valgus stress, or positive drawer or McMurray's signs.  Slight tenderness was present upon palpation over the inferior patella tendon.  Nonetheless, demonstrated right leg motion was full.  X-rays revealed only mild degenerative changes.

An examination of the right knee performed over a year later, during a December 2002 VA examination, the Veteran continued to demonstrate right knee flexion to 110 degrees and full extension, albeit with reported pain at the endpoint of extension.  The examiner noted that the knee seemed to be stable.  Some crepitus was noted in both knees, although it was found to be greater in the left and "almost impossible to note" in the right.  X-rays of the knee revealed only spurring in the patella.

Subsequent VA treatment records dated through December 2004 reflect ongoing complaints of pain and instability in his right knee.  During VA treatment in January 2003, he complained of limited motion in his right knee; however, the corresponding records from that date do not reflect any specific right knee range of motion findings.  Later that month, the Veteran reported that his right knee had "given out" twice over the preceding week.

In February 2005, the Veteran underwent another VA examination of his knees.  At that time, he reported ongoing pain, locking, and giving way in his right knee.  He also reported that he was still wearing a brace on his right knee and that he used a cane for walking.  During the clinical examination, the Veteran was able to produce right knee motion which included full extension so zero degrees and flexion to 115 degrees with pain being reported at the end of motion.  Repetitive motion of the right knee resulted in further loss of right knee flexion to 110 degrees.  The Veteran demonstrated a normal gait, and once again, did not show any evidence of ankylosis, edema, effusion, instability, weakness, redness, heat, abnormal movement, or guarding of movement.

Subsequent VA treatment records through March 2011 reflect ongoing complaints of knee pain.  X-rays taken during treatment in October 2006 continued to show degenerative joint disease.  The Veteran's gait remained within normal limits, but was indicative of slight stiffness.  Repeat x-rays taken in March 2007 continued to show degenerative joint disease.  During VA treatment in November 2009, the Veteran was able to produce full and normal range of motion in both legs, although crepitus was noted throughout motion.  VA treatment records from March 2011 reflect that the Veteran continued to wear a brace on his right knee and that his pain was being reported as a nine out of 10 in severity.

During a December 2011 VA examination, the Veteran stated that he was unable to walk very far and that his knees seemed to be affecting his other joints.  He described pain symptoms as being a severity of an eight on a scale of 10; however, denied any history of surgery or hospitalization for treatment of either knee.  During the clinical examination of his right knee, pain was present upon palpation.  Nonetheless, the Veteran was able to produce right knee flexion to 100 degrees with pain at the end of motion and full extension to zero degrees without pain.  Repetitive motion was productive of complaints of pain and disturbance of locomotion, however, apparently did not result in any further loss of motion or function.  Muscle strength was full and no instability was seen in the right knee.  X-rays again confirmed the presence of degenerative arthritis in the right knee.

Overall, the evidence shows that, over the entire course of the appeal period, the Veteran has had full extension and flexion limited to no less than 100 degrees.  As such, a disability rating higher than 10 percent for the Veteran's right knee is not warranted. 

In holding that the criteria for a higher evaluation based on limitation of right knee motion is not warranted, the Board notes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes.  "Functional loss" may occur as a result of weakness or pain on motion.  The evidence shows that pain was present in the right knee, particularly after extensive use of the knee and at the endpoints of motion.  Nonetheless, given the extent of right knee motion shown by the Veteran on objective examination during throughout the course of this appeal, and even taking his reported pain into full consideration, there is no evidence of a disability picture that is commensurate to a limitation of right leg flexion to the extent necessary to establish entitlement to a higher disability rating.  See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261.  In this regard, the Board emphasizes that a 10 percent rating under DC 5010 already contemplates an otherwise noncompensable degree of limitation of motion verified by objective evidence of symptoms such as painful motion.

Further, as the evidence does not show the existence of any instability or subluxation in the Veteran's right knee, the Board finds no basis for a separate disability rating for right knee instability under DC 5257.  Although the Veteran has considered the Veteran's lay reports that his knee has given way, the Board ultimately places more weight on the results of objective examination by health care specialists, which have shown no evidence of instability.

Overall, the evidence does not support the assignment of a disability rating higher than 10 percent for the Veteran's right knee degenerative joint disease with residuals.  To that extent, this appeal is denied.  38 C.F.R. §§ 4.3, 4.7.

C.  Left Knee

The Veteran's claim for a disability rating higher than 10 percent for service-connected left knee chondromalacia patella with spurs and decreased motion was also received in January 2002.  Accordingly, the Board's relevant focus in considering the Veteran's claim for a higher disability rating for his left knee disability is upon the evidence from January 2001 to the present.  The Board will also consider entitlement to a separate rating under DC 5257 during that time period, as well as entitlement to a rating in excess of 10 percent on and after December 20, 2011.

The Veteran's left knee disability has been rated as being 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5261.  For ease of reference, the Veteran notes again that under DC 5261, a 10 percent disability rating is appropriate where leg extension is limited to 10 degrees.  A 20 percent disability rating is in order where leg extension is limited to 15 degrees.  A 30 percent disability rating is appropriate where leg extension is limited to 20 degrees.  A 40 percent disability rating is assigned where leg extension is limited to 30 degrees.  A maximum schedular 50 percent disability rating is awarded where leg extension is limited to 45 degrees.

As noted above, additional criteria for rating knee disabilities based upon loss of motion are available under DC 5260.  Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees.  A 20 percent disability rating is in order where leg flexion is limited to 30 degrees.  A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees.

As previously indicated, normal range of motion for the knee is from zero degrees of extension to 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2012).

In relation to the Veteran's left knee disability, the Board notes from the outset that the evidence does not show the presence of any ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum.  For these reasons, DCs 5256, 5258, 5259, 5262, and 5263 are also not applicable for rating the Veteran's left knee disability.

During the Veteran's October 2001 VA examination, the Veteran reported locking and stiffness in his knees and that he used a cane for walking.  A physical examination of the left knee did not reveal redness, swelling, drawer or McMurray signs, or abnormality to valgus or varus stress.  Ranges of motion in the left leg were full.

During the December 2002 VA examination, the Veteran demonstrated left knee flexion to 114 degrees and a loss of 10 to 12 degrees of extension.  Pain was reported at the endpoint of extension.  A clinical examination of the left knee did not reveal the presence of any instability.  Some crepitus was also noted, but the knee was found to be stable and Drawer sign was negative.

Subsequent VA treatment records through January 2003 reflect ongoing complaints of pain.  In January 2003, the Veteran was issued a brace for his left knee.  X-rays at that time showed spurring at the anterior aspect of the patella, along with degenerative changes.  Repeated x-rays in April 2004 indicated calcification of the patellar ligament, osteosclerosis and thickening of the bony cortex of the posterior aspect of the left femur and medial aspect of the upper portion of the left tibia, presumably due to osteoid osteoma, inflammatory changes, or posttraumatic changes.  Despite these radiological findings, there is no indication in the record of impairment of the tibia and fibula marked by either nonunion or malunion.

An evaluation of the Veteran's left knee during a July 2004 VA treatment indicated normal gait and full range of motion in the left leg.  An MRI of the left knee performed in December 2004 was normal.

During a February 2005 VA examination, the Veteran continued to report left knee pain as well as symptoms of locking, giving way, and flare-ups in his symptoms that occurred three times per week and lasted for periods of up to two hours.  He continued to report wearing a knee brace and using a cane to walk.  During physical examination, the Veteran was able to produce full left knee extension to zero degrees and flexion to 100 degrees with pain being reported at the end of motion.  Repetitive motion of the left knee did not result in any further loss of function.  Overall, the Veteran demonstrated a normal gait without any evidence of ankylosis, edema, effusion, instability, weakness, redness, heat, abnormal movement, or guarding of movement.

During VA treatment in December 2005, the Veteran continued to report left knee pain but demonstrated full motion without any evidence of deformity.  X-rays performed in October 2006 and March 2007 revealed degenerative joint disease.  During treatment in October 2008, the Veteran continued to demonstrate normal left leg range of motion.  In March 2011, he reported ongoing knee pain that he rated as being a nine out of 10 in severity.

During his December 2011 VA examination, the Veteran stated that he was unable to walk very far and described pain symptoms as being an eight on a scale of 10.  He reported that he was wearing a brace on his left knee at night to prevent his knee cap from moving out of place; however, denied any history of surgery or hospitalization for treatment of his left knee.  During the examination, the Veteran was able to produce left knee motion which included flexion to 95 degrees with pain at the end of motion and full extension to zero degrees without pain.  Repetitive motion of the left knee was productive of complaints of pain and disturbance of locomotion, however, apparently did not result in any further loss of motion or function.  Muscle strength was full in both lower extremities; however, slight medial lateral joint instability was observed in the left knee.  X-rays revealed degenerative arthritis.

The evidence shows that, over the course of the appeal period, the Veteran has been able to produce left leg flexion to no less than 95 degrees and a loss of no more than 12 degrees of extension with pain being reported at the endpoint of extension.  Based upon the same, the Veteran is not entitled to a disability rating higher than 10 percent for his left knee disability under either DC 5260 or 5261.

Again, the Board recognizes that it is bound to consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes.  DeLuca, 8 Vet. App. 202.  In that regard, it notes that the Veteran's left knee has been manifested by chronic pain.  Although pain was reported at the endpoints of left leg motion, and, repetitive motion was productive of symptoms, such symptoms did not result in any additional loss of motion or function in the left leg.  In consideration of the same, and given the extent of left leg motion shown by the Veteran throughout the course of this appeal, there is no evidence of a disability picture that warrants the assignment of a higher disability rating.  See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261.

As discussed above, the objective medical evidence does indicate that the Veteran demonstrated slight instability, but no more, in his left knee on the most recent VA examination.  The Board notes, however, that previous VA examinations were consistently negative for objective evidence of instability or subluxation.  While the Board has considered the Veteran's complaints of instability and giving way in his knee, the Board ultimately places far more weight on the objective examination findings of competent health care providers.  Consequently, the Board finds that entitlement to a separate rating under DC 5257 prior to December 20, 2011, is not warranted.  Furthermore, given the minimal finding of instability during the December 2011, VA examination, the Board concludes that a rating in excess of 10 percent under DC 5257 is not warranted on or after that date.

Overall, the evidence does not support the assignment of a disability rating higher than 10 percent for the Veteran's left knee chondromalacia patella with spurs and decreased range of motion.  The evidence also does not support the assignment of a rating in excess of 10 percent under DC 5257 on or after December 20, 2011, or entitlement to a separate rating under DC 5257 prior to that date.  To that extent, this appeal is denied.  38 C.F.R. §§ 4.3, 4.7

D.  Additional Considerations

As noted above, the Board has considered potential application of various provisions of Title 38 Code of Federal Regulations, whether or not they were raised by the Veteran.  Schafrath, 1 Vet. App. 589.  In doing so, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings.  However, in this case, the Board finds that the record does not show that the Veteran's renal insufficiency and bilateral knee disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show that the Veteran's service-connected renal insufficiency or bilateral knee disabilities present an exceptional disability picture that renders inadequate the available schedular evaluation for the service-connected disabilities.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under the applicable diagnostic codes; however, the Veteran's disabilities are not productive of the manifestations required for the next higher rating.  As such, it cannot be said that the available schedular evaluations for the Veteran's disabilities are inadequate.

The Board also observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  The record does not show that the Veteran has required frequent hospitalizations for the disabilities under consideration, and there is nothing in the record to indicate that the Veteran's disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). 

Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected renal insufficiency and bilateral knee disabilities, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met.  Thun, 22 Vet. App. 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); 

The Board has also considered whether further "staged" disability ratings for any of the foregoing disabilities are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings for any of the disabilities under consideration.



ORDER

New and material evidence has been received, and the Veteran's previously denied claim for service connection for a low back disorder is reopened.

New and material evidence has been received, and the Veteran's previously denied claim for service connection for a bilateral foot disorder is reopened.

Entitlement to a disability rating of 30 percent for renal insufficiency is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD) with residuals is denied.

Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia patella with spurs and decreased range of motion is denied.

Entitlement to a disability rating in excess of 10 percent for left knee instability on and after December 20, 2011, or a compensable rating for instability prior to December 20, 2011, is denied.


REMAND

Regarding the Veteran's claim for service connection for a back disorder, the service treatment records show that the Veteran was treated in November 1984 for reported back pain that had been present for two months.  At that time, scoliosis was diagnosed and the Veteran was placed on temporary physical profile for management of his back symptoms. Post-service treatment records include June 1987 and August 1988 VA examination reports which note complaints of left-sided low back pain.  An x-ray obtained in June 1987 revealed slight narrowing of the L5-S1 disc space.  Radiological studies performed at Moore Regional Hospital in December 2007 revealed the presence of "significant" fractures in the thoracic and lumbar spine which were productive of pain at the areas of the T9 and T10 vertebral discs.  The Board finds that a VA spine examination to explore this question is warranted by the evidence.  Accordingly, the Veteran should be arranged to undergo such an examination.  38 C.F.R. § 3.159(c)(4).

In his February 2005 claim, the Veteran reported that he was experiencing pain in his hips and alleged generally that he was entitled to service connection for a bilateral hip disability.  In an April 2005 statement, he asserted his belief that his reported hip problems were secondary to his service-connected knee disabilities.  He repeated these assertions in subsequent claims submissions and statements received through January 2013.  The Board finds that a VA examination to explore this question is warranted by the evidence.  Accordingly, the Veteran should be arranged to undergo such an examination.  38 C.F.R. § 3.159(c)(4).

Similarly, in statements dated May 2011 and January 2013, he alleged that his reported foot problems were secondary to service-connected knee disabilities.  In this regard, service treatment records include a March 1984 enlistment examination report which reflects clinical findings of mild pes planus.  The remaining service treatment records do not reflect any in-service complaints, treatment, clinical findings, or diagnoses relevant to the Veteran's feet.  However, the post-service treatment records show diagnoses of tarsal tunnel syndrome and neuralgia in both feet as early as 1998.  The Board finds that a VA examination to explore this question is warranted by the evidence.  Accordingly, the Veteran should be arranged to undergo such an examination.  38 C.F.R. § 3.159(c)(4).

With regard to the Veteran's claim for service connection for an eye disorder, the Veteran has alleged in statements dated August 2003, April 2004, and August 2005 that his current eye conditions may be related to medications for treatment of his service-connected hypertensive heart disease and renal insufficiency.  A complete listing of the Veteran's medications from 2007 through 2009 is contained in the claims file.  A listing of the Veteran's medications for his heart condition is expressed in a November 2008 VA examination addendum opinion and includes:  Nifedipine, Atenolol, Amlodipine, Minoxidil, Furomeside, and Lisinopril.  A December 2011 VA examination report also lists the following additional medications:  Isosorbide, Plavix, and ASA.

The Veteran was previously afforded VA examinations for his eyes in June 2003 and December 2011.  Although both VA examiners opined that the Veteran's eye disorder, diagnosed as presbyopia and convergence insufficiency, were not related to the Veteran's hypertensive heart disorder or his active duty service, neither VA examiner offered any opinion as to whether the Veteran's eye condition was related to medications for his service-connected hypertensive heart disease and renal insufficiency.

In September 2012, VA sought an independent claims file review and opinion from Dr. J.W.M. as to whether the diagnosed presbyopia and convergence insufficiency are due to the Veteran's May 1988 sty and/or to possible eye irritation during Operation Desert Storm.  Although Dr. J.W.M. provided negative opinions as to these questions with supporting rationale, the Board notes that, once again, Dr. J.W.M. was not asked to provide an opinion as to whether the Veteran's eye disorder is related to his medications for his service-connected hypertensive heart disorder and renal insufficiency.  Hence, such an opinion was not provided by Dr. J.W.M.

In view of the foregoing evidence, VA must provide the claims file to Dr. J.W.M. again and request an addendum opinion as to whether the Veteran's presbyopia and convergence insufficiency are at least as likely as not related to his medications for hypertensive heart disease and renal insufficiency.  If Dr. J.W.M. is unavailable to provide such an opinion, VA must then provide the claims file to a new medical expert and request that the expert provide an opinion as to this medical question.

Concerning the issue of the Veteran's entitlement to a disability rating higher than 60 percent for hypertensive heart disease, the Board notes that VA treatment records from December 2010 and January 2011 reflect that the Veteran was being post-operatively, following hospitalization at Moore Regional Hospital in November 2010 for diagnosed coronary artery disease and a triple coronary bypass procedure.  Although previous hospital records from Moore Regional Hospital dated through 2007 were obtained and associated with the record, there is no indication in the claims file that VA has undertaken any efforts to obtain additional hospital records from that facility since 2007.

The applicable rating criteria for the Veteran's service-connected heart condition are listed under 38 C.F.R. § 4.104, DC 7007.  Under that criteria, a 60 percent disability rating is assigned for hypertensive heart disease manifested by more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent disability rating is assigned where hypertensive heart disease has been manifested by chronic congestive heart failure, or; workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.

To the extent that the rating criteria for the Veteran's hypertensive heart disease consider the aforementioned findings from laboratory and other testing, the complete clinical records pertaining to the Veteran's November 2010 hospitalization, surgery, and post-surgical convalescence are crucial in evaluating the Veteran's hypertensive heart disease.  Accordingly, VA must undertake efforts to contact the Veteran to obtain an appropriate release for the clinical treatment records from Moore Regional Hospital since 2007, to include the aforementioned 2010 hospitalization records.  After this release (or any other necessary release from the Veteran) has been obtained, the Veteran should obtain the additional clinical treatment records from Moore Regional Hospital.  38 C.F.R. § 3.159(c)(1).

Also, prior to arranging the VA examinations and obtaining the addendum opinions requested above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his back, eye condition, hypertension, and heart condition since August 2011.  VA must then also make efforts to obtain any treatment records that are identified by the Veteran.  38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1.  A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his reopened claim for service connection for a low back disorder; service connection for an eye condition, to include as secondary to service-connected hypertensive heart disease; and entitlement to a disability rating in excess of 60 percent for his service-connected hypertensive heart disease.  This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claims, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran.

The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of his claimed low back condition.  The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim.

The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) for Moore Regional Hospital and for any other private or VA medical providers who have provided treatment for his back, eye condition, hypertension, and heart condition since August 2011.

2.  After obtaining any necessary releases from the Veteran, obtain from Moore Regional Hospital the records pertaining to any treatment received by the Veteran at that facility since 2007, to include the Veteran's complete clinical records from his hospitalization for coronary artery disease and triple coronary bypass surgery in 2010.  Also obtain any other records identified by the Veteran of treatment received by him since August 2011 for his back, eye condition, hypertension, and heart condition.  All records obtained as a result of such efforts should be associated with the claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, performed by an appropriate physician, to determine whether the Veteran has a current low back condition that is etiologically related to his active duty service or service-connected disabilities.  The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.

Following a thorough evaluation, during which all indicated tests are performed, the examiner should: 

a) diagnose all back disabilities shown to exist; 

b) as to the scoliosis noted in service, offer an opinion as to whether such finding constitutes a congenital disease, congenital defect, or the result of an acquired disease or injury?  In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should be advised of the following definitions provided by VA's General Counsel:  The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.  On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.  

b.)  If the examiner determines that the scoliosis is a disease or injury, the following opinion should be provided:  Did the condition clearly and unmistakably exist prior to his active service and clearly and unmistakably undergo no permanent increase in severity as a result of his military service?

c.)  If the examiner determines that the scoliosis is a defect, the following opinion should be provided:  Is there a 50 percent or better probability that the Veteran developed superimposed low back disease or injury as a result of military service?  

d.)  For any other low back disability identified, the following opinion should be provided:  Is there a 50 percent or better probability that any other low back disorder is related to any disease or injury in service?  In rendering this opinion, please discuss the significance of the June 1987 x-ray finding of slight narrowing of the L5-S1 disc space.



A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation.

4.  After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, performed by an appropriate physician, to determine whether the Veteran has a current bilateral hip disability that is etiologically related to his active duty service or service-connected disabilities.  The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.

Following a thorough evaluation, during which all indicated tests are performed, the examiner should: 

a) diagnose all hip disabilities shown to exist; 

b) as to each disease or disability identified in a hip, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it originated during active service/active duty; or is in any other way causally related to his periods of active service/active duty; 

c) as to each disease or disability identified, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it was caused by or has been permanently aggravated by a service-connected disability. 

A report of the examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation.

5.  After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, performed by an appropriate physician, to determine whether the Veteran has a current bilateral foot disability that is etiologically related to his active duty service or service-connected disabilities.  The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.


Following a thorough evaluation, during which all indicated tests are performed, the examiner should: 

a) diagnose all foot disabilities shown to exist, to include, if applicable, pes planus, tarsal tunnel syndrome and neuralgia.

b) As to pes planus, offer an opinion as to whether the preexisting condition underwent any increase in service beyond its natural progression, or was otherwise aggravated by service.

c) As to any other disease or disability identified in a foot, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it originated during active service/active duty; or is in any other way causally related to his periods of active service/active duty; 

d) as to any other disease or disability identified, opine as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that it was caused by or has been permanently aggravated by a service-connected disability. 

6.  If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility.

7.  The claims file should also be made available the same medical expert who provided the September 2012 expert opinion (Dr. J.W.M.).  The expert should be asked to review the claims file in its entirety and to offer opinions as to whether the Veteran's presbyopia and convergence insufficiency at least as likely as not related to his medications for hypertensive heart disease and renal insufficiency.  The expert should be referred to the medications listed in the VA medication list dated from 2007 through 2009 and the medications identified in his November 2008 and December 2011 VA examination reports.

If Dr. J.W.M. is not available to perform the requested claims file review or to provide the requested opinion, then the claims file should be provided to a new medical expert for an opinion as to the question posed above.

8.  After completion of the above development, the issues of service connection for a low back disorder; service connection for a bilateral hip disorder, service connection for a bilateral foot disorder, service connection for an eye condition, to include as secondary to service-connected hypertensive heart disease; and entitlement to a disability rating in excess of 60 percent for his service-connected hypertensive heart disease should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond.

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).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs