Citation Nr: 1316875 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-05 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for Type II diabetes mellitus. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for refractive error and presbyopia (claimed as vision loss). 5. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee, status post meniscectomy. 6. Entitlement to an initial disability rating in excess of 10 percent for instability of the right knee. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2006 to May 2007 with unspecified periods of U.S. Navy Reserve service. With the exception of the Type II diabetes mellitus claim, the Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the service connection claims on appeal. In the March 2008 rating decision, the RO also granted service connection for degenerative joint disease of the right knee and instability of the right knee, and assigned two separate 10 percent disability ratings. The 10 percent disability ratings were made retroactively effective from May 14, 2007, the day following the Veteran's discharge from the military. The Veteran filed a Notice of Disagreement (NOD) in April 2008, appealing the initial disability ratings assigned and the denials of service connection. The RO issued a Statement of the Case (SOC) in December 2008. In February 2009, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. The Veteran's Type II diabetes mellitus claim comes before the Board on appeal from a September 2010 rating decision of the RO in Montgomery, Alabama, which denied the claim. The Veteran filed a NOD in October 2010. The RO issued a SOC in April 2012. In June 2012, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand. All of the service connection issues 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. Throughout the appeal, the Veteran's degenerative joint disease of the right knee, status post meniscectomy, has not been manifested by flexion limited to 60 degrees, extension limited to 5 degrees, or ankylosis. 2. Throughout the appeal, the Veteran's instability of the right knee has not been manifested by recurrent subluxation or lateral instability that is productive of moderate impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for the degenerative joint disease of the right knee, status post meniscectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5010-5260 (2012). 2. The criteria for an initial disability rating greater than 10 percent for the instability of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran an initial duty-to-assist letter in September 2007. This letter addressed the Veteran's underlying claim of service connection for a right knee disorder. The increased rating claims flow downstream from a March 2008 rating decision, which initially established service connection for degenerative joint disease of the right knee and instability of the right knee. The United States Court of Appeals for Veterans Claims (Court) held, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs, personnel records, and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. He has been afforded VA examinations, and the reports of those evaluations contain all findings needed to properly evaluate his right knee disabilities. 38 C.F.R. § 4.2 (2012). The Board does not have notice of any additional relevant evidence that is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. That is to say, VA may "stage" the rating to compensate the Veteran for times since the effective date of his award when his disability may have been more severe than at others. Fenderson, 12 Vet. App. 119, 125-6 (1999). 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, irrespective of whether 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 (1991). An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Veteran is in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, DCs 5010-5260, for his degenerative joint disease of the right knee. The Veteran is also in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5257, for his instability of the right knee. The Veteran asserts that he is entitled to higher initial disability ratings. DC 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis that is 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. 38 C.F.R. § 4.71a. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating disabilities listed under DCs 5013 to 5024, inclusive. 38 C.F.R. § 4.71a. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, then DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a. Here, the appropriate DCs for limitation of motion of the knee are DCs 5260 and 5261. Under DC 5260, a noncompensable (0 percent) rating is warranted if flexion is limited to 60 degrees. A 10 percent rating requires flexion of the knee limited to 45 degrees, and a 20 percent rating is warranted for flexion of the knee limited to 30 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating is warranted if extension is limited to 5 degrees. A 10 percent rating requires extension limited to at least 10 degrees, and a 20 percent rating requires extension limited to 15 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability which is productive of slight impairment of the knee. A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. Id. The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination. 38 C.F.R. §§ 4.2, 4.6. In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability. It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension). Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010. It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Further, a disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). If the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston, 10 Vet. App. at 80. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §§ 3.102, 4.3. The Board will begin by addressing the Veteran's current 10 percent disability rating under 38 C.F.R. § 4.71a, DCs 5010-5260, for his degenerative joint disease of the right knee. Initially, the Board notes that measurements taken at the VA examinations, which included consideration of the Veteran's pain following repetitive use, did not meet the criteria for the 20 percent ratings under DC 5260 or DC 5261. 38 C.F.R. § 4.71a. At the September 2007 VA joints examination, the Veteran's flexion of the right knee was limited to 115 degrees (normal is 140 degrees), with the Veteran's pain beginning at 80 degrees. His extension of the right knee was normal (0 degrees), without indication of pain. At the March 2009 VA joints examination, the Veteran's flexion of the right knee was limited to 100 degrees, and his extension of the right knee was normal, even with consideration of his pain. Neither the September 2007 nor the March 2009 VA examinations revealed any additional limitation or change in the left knee range of motion following repetitive use. At the September 2012 VA joints examination, the Veteran's flexion of the right knee was to at least 70 degrees, and his extension of the right knee was normal, even with consideration of his pain. The remaining VA and private treatment records do not provide evidence contrary to that obtained at the VA examinations. As noted above, a claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DC 5260 or DC 5261. VAOPGCPREC 9-98. However, the evidence of record does not establish that the Veteran's flexion of the right knee is limited to 30 degrees or that his extension of the right knee is limited to 15 degrees, to warrant a higher disability rating of 20 percent, even when considering the Veteran's pain. 38 C.F.R. § 4.71a, DCs 5260, 5261. Therefore, the Veteran is not entitled to a higher 20 percent disability rating for his degenerative joint disease of the right knee under DC 5260 or DC 5261. 38 C.F.R. § 4.71a. The Veteran is also not entitled to a higher 20 percent rating under DCs 5010-5003. 38 C.F.R. § 4.71a. The evidence described above establishes that the Veteran does not have a noncompensable or compensable disability rating under the limitation of motion Codes (DCs 5260 and 5261). 38 C.F.R. § 4.71a. In instances where there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, but there is degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating is warranted. 38 C.F.R. § 4.71a. However, the evidence of record does not establish that the Veteran has occasional incapacitating exacerbations from his degenerative joint disease of the right knee. These complaints were not noted in any of the VA compensation examinations or treatment records. Thus, the Veteran is not entitled to a higher 20 percent under DCs 5010-5003. 38 C.F.R. § 4.71a. The Board will now discuss the Veteran's current 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5257, for his instability of the right knee. Following a review of the evidence of record, the Board does not find that the Veteran is entitled to a higher 20 percent rating. The evidence does not establish that the Veteran's right knee has been manifested by recurrent subluxation or lateral instability that is productive of moderate impairment of the knee. 38 C.F.R. § 4.71a, DC 5257. At the September 2007, March 2009, and September 2012 VA compensation examinations, the VA examiners found that the Veteran did not experience any subluxation or instability in his right knee. The VA and private treatment records do not provide contrary evidence to that obtained at the VA examinations. In regards to instability, the Veteran is already in receipt of a 10 percent disability rating for instability based on his own lay statements concerning the giving way of his right knee and the use of a right knee brace. However, there is no evidence that the Veteran's instability or giving way is not controlled by the right knee brace he uses. Throughout his appeal, the Veteran has not been treated for any injury related to a fall caused by giving way of the right knee. No VA or private physician has objectively noted lateral instability during an examination. The Veteran's complaints of pain are considered in the evaluation under DCs 5010-5003, and cannot be considered a second time as a basis for an evaluation in excess of 10 percent under DC 5257 (indicating that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion). Thus, the objective evidence does not establish that the Veteran's instability is not encompassed within the 10 percent evaluation already assigned under DC 5257. 38 C.F.R. § 4.71a. The remainder of the DCs pertaining to the knee and leg also do not justify disability ratings in excess of 10 percent. Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knee. The existence of ankylosis is not supported by the Veteran's ranges of motion. DC 5258 is applicable where there is cartilage, semilunar, dislocated, with frequent episodes of "locking" pain and effusion into the joint. At the VA examinations, the VA examiners found that the Veteran's right knee did not have any dislocations, abnormalities, or deformities. DC 5262 (describing malunion or nonunion) has also not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran's right knee noted at the VA examinations. Thus, the Veteran is not entitled to a higher disability rating of 20 percent under DC 5258 or DC 5262. Additionally, the Veteran is already in receipt of the maximum schedular rating of 10 percent under DC 5259, and DC 5263 also does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. The Board also finds that disability ratings higher than 10 percent are not warranted on the basis of functional loss due to the other factors discussed in DeLuca - namely, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-08. It bears reiterating that the Veteran does not have sufficient limitation of flexion or extension in his right knee, even when considering his pain, to warrant even the minimum compensable rating of 10 percent under DCs 5260 and 5261. Thus, his current 10 percent rating for degenerative joint disease of the right knee under DCs 5010-5260 is the means of compensating him for the additional impairment - including additional limitation of motion, from his chronic pain from the degenerative changes in this knee. Thus, he is already receiving the appropriate amount of compensation for the pain and other DeLuca factors. The Board also notes that the Veteran recently had right knee surgery in March 2011. The Veteran filed a claim for a temporary total disability rating due to surgical convalescence for his service-connected right knee disabilities. 38 C.F.R. § 4.30. This claim was denied by the RO in rating decisions dated in May 2011 and August 2011. The Veteran did not file a NOD in response, and therefore this claim does not need to be addressed by the Board. Furthermore, the Veteran's symptoms do not appear to have changed significantly during this initial rating period so as to warrant staged ratings. Fenderson, 12 Vet. App. at 126. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain and weakness, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his right knee disabilities are worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. In sum, the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the service-connected degenerative joint disease of the right knee, status post meniscectomy, and the instability of the right knee, at any time during the appeal period. Thus, the claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert , 1 Vet. App. at 53. III. Extraschedular Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Pursuant to § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, the schedular ratings of 10 percent for the Veteran's right knee disabilities fully address his symptoms, which include mainly pain (which has been considered in his ranges of motion) and weakness. Thus, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted. The evidence of record does not establish, and the Veteran does not contend, that his right knee disabilities prevent him from being employed or that his right knee disabilities have required frequent hospitalizations. At his VA examinations, the Veteran stated that he was currently employed full-time. He has only been hospitalized on two occasions (May 2007 and March 2011) since his military discharge for his right knee surgeries. Thus, there is no evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of an extraschedular rating is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). IV. TDIU Consideration Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based in individual unemployability due to service-connected disabilities (TDIU). TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At the VA examinations, the Veteran reported that he was currently employed, and there is no allegation that his service-connected right knee disabilities have resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER An initial disability rating in excess of 10 percent for degenerative joint disease of the right knee, status post meniscectomy, is denied. An initial disability rating in excess of 10 percent for instability of the right knee is denied. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated. As for all of the remanded claims, it does not appear that all dates of the Veteran's active duty and reservist service have been verified, to include verification of the nature of his reservist service. The claims file documents that the Veteran had United States Navy Reserve military service, both prior to and after his period of active duty from July 2006 to May 2007. Specifically, his DD 214 indicates that he had 11 months and 24 days of active duty service prior to July 2006. Moreover, on his July 2007 claim, the Veteran stated that he was currently assigned to an active reserve unit of the U.S. Navy. Additionally, a VA Form 21-8951 documents that the Veteran had 27 days of Reserve service in 2008, but the claims file does not state the type of this service. To date, the RO has not verified whether the Veteran had additional periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his expansive Reserve military career. Further, the claims file contains the Veteran's Reserve records prior to his period of active duty; however, the claims file does not contain any Reserve records dated after May 2007, despite the fact that the Veteran indicated that he was currently an active member of the Reserves. The RO sent the Naval Operational Support Center for Service letters dated in September 2007 and November 2007, requesting the Veteran's Reserves dates and records. No response was received, and no further attempts were made by the RO. The Board finds that these records are pertinent to the Veteran's service connection claims. Therefore, upon remand, the Board finds that additional development is required to determine the exact dates of any such military service, and to obtain these Reserve millitary records. Additionally, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in Birmingham, Alabama, are dated from November 2012, as shown on the Veteran's Virtual VA paperless claims file. Upon remand, all pertinent VA records since this date must be obtained and associated with the claims file. The private treatment records currently in the claims file should also be updated and associated with the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Type II Diabetes Mellitus A remand is required in order to afford the Veteran a VA examination to determine the nature and etiology of his current Type II diabetes mellitus. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of disorder; and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service; but, (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, regarding a current diagnosis, the Veteran was diagnosed with Type II diabetes mellitus by the VAMC in December 2009. Regarding an in-service incurrence, the Veteran's STRs do not contain any complaints of or treatment for Type II diabetes mellitus. However, service connection for certain chronic diseases, including diabetes mellitus, will be presumed if they manifest to a compensable degree within one year following the active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In this regard, the Veteran's representative, in a March 2013 IHP, argued that the Veteran's laboratory findings from the September 2007 VA examination displayed evidence of pre-diabetes, which then lead to his diagnosis of Type II diabetes mellitus in 2009. The September 2007 laboratory tests were conducted within one year of the Veteran's military discharge in May 2007. The September 2007 VA examiner did not interpret the laboratory results or provide a medical nexus opinion. The Board is unable to interpret the September 2007 test results, and is not permitted to substitute its own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In the March 2013 IHP, the Veteran's representative requested that the Veteran's claim be remanded for a VA examination and medical opinion to be obtained. Therefore, as the issue has been raised by the record, the Board finds that a VA examination is necessary to determine whether the current Type II diabetes mellitus is related to the Veteran's active military service, or manifested to a compensable degree within one year of his military service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Hypertension Initially, the Board notes that the evidence of record suggests that the Veteran's current hypertension may have pre-existed his period of active duty. 38 U.S.C.A. § 1111, 1153; 38 C.F.R. § 3.306. As reflected in an April 2006 private treatment record, the Veteran was diagnosed with hypertension, prior to entering his period of active duty in July 2006. During service, the Veteran was diagnosed with hypertension on several occasions during his active military service. See e.g. August 2006, November 2006, January 2007, February 2007, and May 2007 treatment records; see also April 2007 Report of Medical Assessment form. On his February 2009 Substantive Appeal (on VA Form 9), the Veteran argued that he was diagnosed with hypertension prior to his active military service, but his active military service then aggravated his pre-existing hypertension. In this regard, the Veteran has not been provided with a proper duty-to-assist notice letter. Specifically, the Veteran has not been informed of the requirements for establishing service connection based on aggravation of a pre-existing disorder. The Veteran must be provided with this requisite notice. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Second, based on the evidence suggesting a pre-existing disorder and aggravation of this disorder, the Board finds that a VA medical opinion is necessary before the claim can be decided on the merits. In the March 2013 Informal Hearing Presentation (IHP), the Veteran's representative requested that the Veteran's claim be remanded for a VA medical opinion to be obtained. The Veteran was afforded a VA examination in September 2007, but the VA examiner did not provide a medical nexus opinion. Upon remand, this VA medical opinion must be obtained. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Refractive Error and Presbyopia To assist the Veteran with his vision loss claim, he was afforded a VA eye examination in September 2007, in which he was diagnosed with presbyopia and refractive error. Regarding presbyopia, congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Myopia, astigmatism, and presbyopia are all considered to be forms of refractive error. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10 (December 29, 2007). Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. Congenital or developmental defects are not diseases or injuries for the purposes of service connection, and can only be granted by establishing aggravation of the congenital disorder. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996). In this regard, the Veteran has not been provided with a proper duty-to-assist notice letter. Specifically, the Veteran has not been informed of the requirements for establishing service connection based on aggravation of a congenital disorder. The Veteran must be provided with this requisite notice. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Additionally, the Board notes that during the Veteran's active military service, he was diagnosed with myopia and refractive error in March 2007. At that treatment visit, the Veteran reported decreased distance vision for the past six months. On his April 2007 Report of Medical Assessment form, the Veteran stated that his health was worse post-deployment because, in part, of his eyesight. The Veteran's active military service ended in May 2007. To date, the Veteran has not been afforded a VA medical opinion addressing whether his active military service aggravated his congenital eye disorders. In light of the current diagnoses and the in-service diagnoses, the Board finds that a remand is required in order to afford the Veteran a VA addendum medical opinion to address the medical question of aggravation. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should send the Veteran a duty to assist notice letter pertaining to his hypertension claim, to include information regarding establishing aggravation of a pre-existing disorder under 38 U.S.C.A. §§ 1111, 1153 and 38 C.F.R. § 3.306. 2. The RO/AMC should send the Veteran a duty to assist notice letter pertaining to his refractive error and presbyopia claim, to include information regarding establishing aggravation of a congenital disorder under 38 C.F.R. §§ 3.303(c), 4.9. 3. Obtain all pertinent VA outpatient treatment records from the Birmingham, Alabama, VAMC since November 2012 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record and documented in accordance with 38 C.F.R. § 3.159(c). 4. Obtain and update all private treatment records currently in the claims file. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record and documented in accordance with 38 C.F.R. § 3.159(c). 5. The RO/AMC should contact the appropriate entities, to include the United States Navy Reserve and the National Personnel Records Center (NPRC) and the Joint Service Records Research Center (JSRRC), and request verification of all dates of active duty, ACDUTRA, and INACDUTRA that the Veteran had with the United States Navy Reserve, both prior to and after his period of active duty from July 2006 to May 2007. Reports of retirement points are not sufficient to meet the requirement of this Remand order. A listing of dates of service and whether within those dates the service can be characterized as active, ACDUTRA, or INACDUTRA is required. All information obtained in this regard must be added to the record. All associated Reserve records should also be obtained. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record and documented as required by 38 C.F.R. § 3.159(c). 6. The RO/AMC should then make a written finding regarding the exact dates of the Veteran's dates of active duty, ACDUTRA, and INACDUTRA. These dates must be provided to the VA examiners prior to the VA examinations. 7. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case. The consequences of failure to report for a VA examination may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655. 8. After completing the above actions, the RO/AMC shall schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his current hypertension. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand, in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current hypertension clearly and unmistakably pre-existed any period of active duty service, to include service from July 2006 to May 2007? (i) If there is clear and unmistakable evidence that the hypertension pre-existed his period of active duty, is there clear and unmistakable evidence (evidence that is obvious and manifest) that the hypertension was not aggravated beyond its natural progression during this period of active duty? (ii) If there is not clear and unmistakable evidence that the current hypertension pre-existed his period of active duty, is it at least as likely as not (a probability of at least 50 percent or more) that the hypertension was incurred during any period of active duty? (iii) If there is not clear and unmistakable evidence that the current hypertension pre-existed a period of active duty, is it at least as likely as not (a probability of at least 50 percent or more) that the hypertension manifested to a compensable degree within one year of any period of active duty discharge, to include his discharge in May 2007? The VA examiner is asked to note the different standards of proof. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 9. After completing the above actions, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his current Type II diabetes mellitus. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand, in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (a probability of at least 50 percent or more) that the Type II diabetes mellitus was incurred during any confirmed period of active duty service? (b) Is it at least as likely as not (a probability of at least 50 percent or more) that the Type II diabetes mellitus manifested to a compensable degree within one year of the Veteran's active duty discharge, to include his discharge in May 2007? Please consider the September 2007 VA examination lab results in answering this question. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 10. After completing the above actions, the RO/AMC shall schedule the Veteran for a VA eye examination to determine the etiology of his refractive error and presbyopia. The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: Regarding the Veteran's current diagnoses of presbyopia and refractive error, is it at least as likely as not (a 50 percent probability or greater) that there was aggravation of these pre-existing congenital defects during his active military service by a superimposed disease or injury, so as to in turn to result in an additional disability? The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorders, and comment on whether the Veteran's statements make sense from a medical point of view. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The VA examination report prepared must be typed. 11. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action is required, to include any further development with regard to the sleep apnea claim. If further action is required, it should be undertaken prior to further claim adjudication. 12. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs