Citation Nr: 1316808	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  11-06 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disability to include as secondary to service-connected chondromalacia patella, left knee, and if so whether service connection is warranted.   

2.  Entitlement to service connection for a right knee disability to include as secondary to service-connected chondromalacia patella, left knee. 

3.  Entitlement to an increased disability rating in excess of 10 percent for service-connected chondromalacia patella, left knee.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from June 1976 to October 1976, from May 1983 to August 1983, and from February 1985 to April 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2010 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

The record shows that the Veteran initially requested a video conference hearing in connection with the issue of entitlement to service connection for a right knee disability.  However, in a May 2011 statement, the Veteran cancelled his request. Accordingly, the Board finds that the Veteran's request for a hearing has been withdrawn.  38 C.F.R. § 20.704 (d) (2012). 

In April 2012, the Board remanded this claim for additional development.  The Board is satisfied that as to the issue decided below, there was substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this regard, records from the Social Security Administration were obtained.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).  

The issues of entitlement to service connection for a low back disorder include as secondary to the service-connected chondromalacia patella, left knee disorder and entitlement to service connection for a right knee disorder to include as secondary to the service-connected chondromalacia patella, left knee 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.  


FINDING OF FACT

1.  An unappealed September 2002 rating decision, denied service connection for a low back disorder.  An unappealed rating decision in April 2004 confirmed the prior denial.   

2.  The evidence received since the April 2004  rating decision, when considered by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder.   

3.  The Veteran's service-connected chondromalacia patella, left knee is manifested by complaints of pain, stiffness, swelling, weakness, and instability with objective evidence of flexion limited to no less than 95 degrees; there is no evidence of instability, subluxation, symptomatic cartilage, tibia or fibula impairment, genu recurvatum, objective evidence of pain following repetitive motion, or additional limitations after three repetitions of range of motion testing.  


CONCLUSIONS OF LAW

1.  The April 2004  rating decision, which denied service connection for a low back disorder is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302 (2012). 

2.  The evidence received subsequent to the April 2004 rating decision denying service connection for a low back disorder is new and material, and the claim for service connection is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a)  (2012). 

3.  The criteria for an increased disability rating in excess of 10 percent for chondromalacia patella, left knee have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

As to the increased rating issue, the RO provided the appellant adequate pre-adjudication notice by letter dated in April 2010.  Additionally, VA has obtained treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, and obtained records from the Social Security Administration (SSA).  The SSA records predate the appellate period.  Although the Veteran's entire history is considered when assigning a disability evaluation, it is the present level of disability that is of concern.  The Board finds the record includes probative histories from the Veteran which are an adequate substitute for the outstanding records.  38 C.F.R. § 4.1; Francisco v. Brown, 7 Vet. App. 55 (1994).  As such, the Board is able to consider the "entire history" and no prejudice results from the absence of these records.  

All known and available records relevant to the issue decided below have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examinations provided are adequate for making a determination in this case.  Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected left knee disorder since he was last examined.  See 38 C.F.R. § 3.327(a) (2012).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met.  See 38 C.F.R. § 3.159 (c)(4) (2012). 

As to the new and material issue, there is no prejudice to the veteran in deciding the claim at this time.  VA has satisfied its duty to notify and assist to the extent necessary to allow for a grant of the claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  


New and Material Evidence

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C.A. § 5108.  For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 

The appellant originally was denied a claim for service connection for a low back disorder in September 2002.  The appellant did not appeal the decision.  As such, the September 2002 rating decision became final.  38 C.F.R. §§ 20.200, 20.202, 20.1103. 

In the September 2002 unappealed rating decision denying service connection for a low back disorder, the medical evidence of record included service treatment records, VA treatment records and a July 2002 VA examination report.  The service records showed no indication of a back injury or treatment.  VA records showed a complaint of back pain in November 1999 and an MRI showed degenerative disc changes at the L4-L5 and L5-S1.  The RO denied the claim finding that there was no evidence that the back disorder was related to service.  

In April 2004, the RO reopened the Veteran's claim and again denied service connection.  The Veteran did not appeal the denial.  The evidence considered consisted of National Guard medical records dated from 1986 to 1998.  The RO denied the claim finding that the evidence did not show that a low back disorder was incurred in service.  

Evidence submitted since the last final denial in April 2004 consists of VA treatment records and VA examination reports which are new.  Also submitted is a March 2013 letter from a private examiner in which it is stated that the examiner believed that it was at least as likely as not that the Jeep accident during military service in 1986 is directly connected to the spinal/back problems.  The Board finds that such evidence is new and material within the meaning of the laws and regulations set forth above, and as such, the claim for service connection for a low back disorder is reopened.  It is material because it associates the current back disorder with service and thus raises a reasonable possibility of substantiating the service connection claim.

Accordingly, the Board finds that new and material evidence has been presented to reopen the appellant's previously denied claim for service connection for a low back disorder.  

Increased Rating

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

If two evaluations are potentially applicable, 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.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  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.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities.  38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. § 4.4.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.  

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). 

The Veteran's service-connected chondromalacia patella, left knee has been rated as 10 percent disabling throughout the evaluation period under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.  Diagnostic Code 5010 indicates that the disability should be rated like degenerative arthritis based on limitation of motion of the affected parts.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  According to Diagnostic Code 5003, when limitation of motion would be noncompensable, i.e., zero percent, under a limitation-of-motion code, but there is at least some limitation of motion, VA assigns a 10 percent disability rating for each major joint so affected, to be combined, not added.  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 Code 5003.

The knee is considered a major joint.  38 C.F.R. § 4.45(f).  The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). 

Under Diagnostic Code 5260, 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Under Diagnostic Code 5261, a 0 percent (noncompensable) disability rating is assigned for extension of the leg limited to five degrees; a 10 percent disability rating is assigned for extension of the leg limited to 10 degrees; a 20 percent disability rating is assigned for extension of the leg limited to 15 degrees; a 30 percent disability rating is assigned for extension of the leg limited to 20 degrees; a 40 percent disability rating is assigned for extension of the leg limited to 30 degrees; and a 50 percent disability rating is assigned for extension of the leg limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Codes 5003 and 5257.  Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the Veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under Codes 5260 or 5261, a separate evaluation could be assigned if there was evidence of a full range of motion "inhibited by pain."  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). 

The General Counsel has directed that separate ratings are available if a particular knee condition causes both the limitation of extension and limitation of flexion of the same joint.  VAOPGCPREC 9-04 (Sept. 17, 2004). 

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran's service-connected chondromalacia patella, left knee does not warrant a disability rating in excess of 10 percent. 

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.  VA outpatient treatment records show that in March 2009, the Veteran complained of left knee pain that had worsened over the past two weeks.  He reported having difficulty getting in and out of chairs and going up and down steps.  Examination showed that he had full flexion and extension of the knee.  There was tenderness to palpation of the medial joint line and minimal crepitance of the patellofemoral joint.  The collateral ligaments were stable.  Lachman testing was negative and McMurray testing caused discomfort though there was no actual clicking or popping.  Prior X-rays were reviewed and noted to show minimal degenerative changes.  The finding was, left knee pain.  In June 2009, he again complained of left knee pain. Examination showed medial joint line discomfort, good range of motion, no instability, trace effusion and no redness or warmth.  An MRI report was reviewed and noted to show a divot-like defect in the posterior horn of the medial meniscus.  It was noted that there was some evidence of degeneration as well as a small joint effusion with thinning of the articular cartilage of the distal femur and proximal tibia.  Intra-articular injections were recommended which the Veteran declined.  In January 2010, the Veteran reported having left knee pain after walking for half a day.  He had small effusion but refused to have it aspirated.  

In April 2010, the Veteran was examined by VA.  His medical records were reviewed.  He reported having sharp pain which he rated as 6/10.  He reported having spontaneous severe pain that lasts for only a few seconds which he rates as 10/10.  He repotted stiffness, weakness, limited motion, fatigability, lack of endurance, and occasional swelling.  He denied flares.  He uses a brace occasionally when he has a lot to do physically.  He reported that walking and standing are significantly limited.  He repotted being unable to stand for more than a few minutes and unable to walk for more than a few yards.  His gait was noted to be antalgic.  Examination showed crepitus, effusion, tenderness, pain at rest, abnormal motion, and guarding of movement.  There was no instability.  Flexion was to 95 degrees and extension was to 10 degrees. There was pain with repetitive motion but no additional limitation after three repetitions.  There was no ankylosis.  It was noted that the Veteran retired in 2001 after a work-related back injury.  The diagnosis was degenerative joint disease, left knee; chondromalacia patella, left knee.  It was noted that he had decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, decreased strength and pain.  The knee had moderate impact on chores, and shopping and severe impact of exercise.  Impact on other daily activities was mild.  

On VA examination in July 2010, motion of the left knee was from 0 to 115 degrees and extension was noted to be normal at 0 degrees.  There was objective evidence of pain on motion and no additional limitation of motion on three repetitions and there was no change in pain, weakness or fatigue on repetitive testing.  Prior X-rays were noted to show minimal degenerative joint disease of the left knee.  

VA outpatient treatment records from 2011 and 2012 show complaints of left knee pain.  In November 2011 the Veteran reported left knee and right ankle pain.  The knee had no swelling, redness or tenderness, and range of motion was normal.  

As noted above, the Veteran is service-connected for chondromalacia patella, left knee which is rated under Diagnostic Codes 5010-5260.  Diagnostic Code 5010 directs that disability should be rated like degenerative arthritis (Diagnostic Code 5003) based on limitation of motion of the affected parts.  Diagnostic Code 5003 states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be Diagnostic Code 5260 or 5261.  When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  The evidence shows that although the Veteran has limitation of motion of the left knee, the Veteran's flexion and extension would be rated as noncompensable under Diagnostic Codes 5260 and 5261.  The Veteran's flexion, at its worst, was 95 degrees, which does not warrant a noncompensable disability rating under 5260.  Although the VA examination in April 2010 showed extension to 10 degrees, 3 months later, in July 2010, extension was normal.  Moreover, VA outpatient treatment records show normal extension in 2011.  Thus the medical evidence does not consistently show that the Veteran has limited extension of the left knee and the isolated finding in March 2009 does not show sustained worsening of the knee joint.  Assigning an increase based on one isolated finding over the course of the appeal period would not be an accurate representation of the Veteran's disability.  Therefore, a higher disability rating is not warranted. 

Turning to the appropriate Diagnostic Codes applicable to knee disabilities, the Board notes that they are not for application.  The medical evidence of record shows that the Veteran does not have ankylosis of the left knee, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or genu recurvatum to warrant higher disability ratings under 5256, 5258, 5259, and 5263, respectively.  See 38 C.F.R. § 4.71(a), Diagnostic Codes 5256, 5258, 5259, and 5263. 

Finally, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under the rating criteria pertaining to impairment of the tibia and fibula.  Diagnostic Code 5262 provides for a 10 percent rating where there is malunion of the tibia and fibula with slight knee or ankle disability.  A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate knee or ankle disability.  A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked knee or ankle disability, and a 40 percent rating is warranted where nonunion of the tibia and fibula is productive of loose motion requiring a knee brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.  There is no evidence of malunion of the tibia and/or fibula.  Thus, the Veteran's disability is not entitled to a higher disability rating under Diagnostic Code 5262. 

The Board notes that the Veteran has complained of giving way of his left knee.  Diagnostic Code 5257 provides compensable ratings based on "slight", "moderate"" and "severe" lateral instability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  However, this has not been shown by the objective medical evidence of record.  The Board recognizes that in March 2009, there was evidence of McMurray discomfort, but at that examination, there is no direct evidence that McMurray's test was positive.  In any event, even if McMurray's test was deemed positive in March 2009, the VA examiners have specifically found no instability.  Thus, the Veteran's disability does not warrant a separate rating under Diagnostic Code 5257. 

The Board has also considered whether this case presents other evidence that would support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint.  See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  In reviewing the record, the Board finds that a higher disability rating is not warranted on the basis of functional loss.  The Veteran is currently assigned an initial disability rating of 10 percent under Diagnostic Code 5010 because he does not meet the criteria for a noncompensable or compensable disability rating under the diagnostic codes related to limitation of motion.  The Veteran is assigned a disability rating of 10 percent due to his limitation of motion with pain.  The Board observes the Veteran's complaints of pain, stiffness, giving way, instability, locking, and weakness; however, the VA examination reports do not reveal any significant loss of range of motion on repetitive motion.  The Board finds that the evidence does not rise to the level of degree to warrant a 20 percent disability rating.  In fact, the Board finds that the Veteran's complaints of pain and functional loss have been taken into account in the currently assigned 10 percent disability rating.  Therefore, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent under DeLuca, 8 Vet. App. 202 (1995).  Additionally the Veteran has reported that he does not experience flare-ups.  

The Board acknowledges the Veteran's statements regarding the severity of his knee symptoms.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters.  Specifically, the Federal Circuit commented that such instances include to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Id.  Similarly, the Court has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  While lay witnesses are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  Although the Board acknowledges the Veteran's complaints, there is no competent medical evidence of record showing that the Veteran has met the rating criteria for a higher disability rating for the left knee.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263.  The Board finds that the objective medical evidence of record, consisting of the VA treatment records and VA examination reports are more persuasive with respect to whether the Veteran's left knee disorder warrants a higher disability in accordance with the schedular criteria as the examining physicians performed physical examinations and reported the objective clinical findings with respect to the Veteran's left knee.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). 

Based on the above, the Board finds that an increased disability rating is not warranted at any time during the pertinent appeal period.  Therefore, staged ratings for the Veteran's service-connected disability are not warranted.  Hart, supra.   

The Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent.  Thus, the benefit of the doubt doctrine is not applicable and the claim is denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).  

Other Considerations

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's chondromalacia patella, left knee is 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 extraschedular 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 extraschedular 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 extraschedular 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 such an exceptional disability picture for the disability at issue such that the available schedular evaluation for the service-connected disability at issue is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned ratings 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 diagnostic codes, but the Veteran's disability is not productive of such manifestations.  As such, it cannot be said that the available schedular evaluation for the disability is inadequate. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected left knee disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).  

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, during the course of this appeal, the RO denied entitlement to a TDIU in October 2012.  To date, the Veteran has not submitted a notice of disagreement to that determination, and the Board will not address it further.   .


ORDER

New and material evidence has been received, and the claim to reopen service connection for a low back disability to include as secondary to service-connected chondromalacia patella, left knee is reopened; to this exent, the appeal is granted

An increased disability rating in excess of 10 percent for service-connected chondromalacia patella, left knee is denied.  



REMAND

Reason for Remand: to obtain an addendum nexus opinion to include having the Veteran examined if necessary.  

The Veteran is seeking service connection for a low back disorder and a right knee disorder to include as secondary to his service-connected left knee disorder.  In April 2012, the Board remanded this claim for a nexus opinion.  At that time the Board pointed out that Veteran was afforded a VA examination in July 2010 in which the examiner opined that the Veteran's low back condition was less likely than not due to or a result of the Veteran's service-connected chondromalacia patella, left knee.  The Board noted that although the examiner's opinion as to whether the low back condition was caused by the service-connected disability was adequate, his opinion as to whether it was aggravated by the service-connected disability was not adequate since the examiner did not provide any supporting rationale for the expressed opinion.  

An addendum opinion was offered in January 2013 in which the examiner stated that there was no evidence of record that the service-connected left knee disorder resulted in chronic alteration of gait and therefore it was unlikely to result in a low back condition.  The examiner expressed the same rationale for finding that the right knee disorder was not related to the service-connected left knee disorder.  However the record shows that the Veteran has been determined during the course of this appeal to have an antalgic gait.  This was found on VA examination in July 2010 on VA examinations in July 2010 of the right knee and of the back as well as on VA outpatient treatment records dated in May 2012 and August 2012.  It was also shown on VA joints examination in April 2010.  

When VA undertakes to provide a VA examination or obtain a VA opinion, even if not required to do so, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  Factors that may be considered in assessing the probative value of a medical opinion include the accuracy of the factual premise underlying the opinion.  See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Further, a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995).  

Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine whether the Veteran's low back disability and/or his right knee disorder are permanently aggravated by the service-connected chondromalacia patella, left knee. 

Additionally, the Board notes that during his VA treatment in June 2012, the Veteran reported that he was seeing a chiropractor.  Records of this treatment have not been requested by the RO.  When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal.  See 38 C.F.R. § 3.159(c)(1); see Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims.  Of particular interest are records from his chiropractor to whom he referred during his VA treatment in June 2012.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

2.  Refer the Veteran's claims folder to a VA physician who has not previously examined him for a clarifying opinion.  The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. 

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay assertions.  

The examiner should address whether it is at least as likely as not (50 percent likelihood or higher) that the Veteran's low back disability and/or his right knee disability are related to his military service or due to or aggravated by the service-connected chondromalacia patella, left knee.  By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression.  

(The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.  Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to it being the result of some other factor or factors.

If the examiner determines that the Veteran needs to be re-examined prior to offering the requested opinions, he should be so scheduled.  

3.  The RO must notify the Veteran that it is his responsibility to report for an examination if one is scheduled for him and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand.  If the report is deficient in any manner, the RO must implement corrective procedures at once.  

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated.  If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto.  The appeal 
must then be returned to the Board for appellate review.  

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).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs