Citation Nr: 1318006 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 07-25 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for right knee instability with strain prior to July 26, 2007. 2. Entitlement to a disability rating in excess of 10 percent for right knee instability with strain after July 26, 2007. 3. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. 4. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disabilities. 5. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected right knee disabilities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). In December 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Atlanta RO. A transcript of the hearing has been associated with the claims file and has been reviewed. The appeal was most recently Remanded by the Board in February 2012, for additional evidentiary development and readjudication. Such development having been completed, it has been returned to the Board for further appellate review. The Board also notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in October 2012 and January 2013 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for left knee and left hip disabilities 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. For the period prior to July 26, 2007, the Veteran's right knee disability was manifested by subjective complaints of pain on activity, positive Lachmann's test, and varus deformity of 3-5 degrees consistent with no more than moderate subluxation and/or lateral instability; and, during that period, there was no X-ray evidence of arthritis. 2. Since July 26, 2007, the Veteran's right knee instability is manifested by subjective complaints of pain on activity, mild lateral laxity, mild swelling, and a mild decrease in strength consistent with no more than slight subluxation and/or lateral instability. 3. The Veteran's degenerative joint disease of the right knee is primarily manifested by X-ray evidence of mild degenerative joint disease with pain on motion, and range of motion limited by no more than 10 degrees of extension and 80 degrees of flexion. (CONTINUED NEXT PAGE) CONCLUSIONS OF LAW 1. During the period prior to July 26, 2007, the criteria for a disability rating in excess of 20 percent for Veteran's right knee instability with strain, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2012). 2. Since July 26, 2007, the criteria for a disability rating in excess of 10 percent for the Veteran's right knee instability with strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5257 (2012). 3. The criteria for a disability rating in excess of 10 percent for the Veteran's degenerative joint disease of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2006 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings are assigned. See Dingess, 19 Vet. App. at 484. There is no indication that he was advised as to how VA assigns effective dates. However, as the Veteran's claim for an increased rating is being denied, the assignment of effective dates is moot. With regard to the Veteran's right knee instability with strain, the Board notes that in a January 2009 rating decision, the disability rating was reduced from 20 to 10 percent. The reduction was effective on July 26, 2007, and based on the findings of a July 2007 VA examination. The Board acknowledges that the Veteran did not receive notice, per se, on the issue of reduction of his service connected right knee instability. However, he was not prejudiced by not receiving this letter. In this case the January 2009 RO rating decision, in addition to effectuating a reduction in compensation benefits, awarded a separate 10 percent disability rating for degenerative joint disease of the right knee, effective from July 26, 2007. Despite the reduction in the rating assigned to the Veteran's right knee instability, his combined evaluation for all disabilities was 20 percent prior to July 26, 2007 and remained 20 percent from July 26, 2007. Thus, his overall disability rating was unchanged due to the concurrent grant of service connection for arthritis. Where the evaluation of a specific disability is reduced but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, the procedural protections afforded under 38 C.F.R. § 3.105(e) are not for application. See e.g., Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a veteran with sixty days notice before making a disability rating decision effective if the decision did not reduce the overall compensation paid to the veteran). See also VAOPGCPREC 71-91 (Nov. 7, 1991) and VAOPGCPREC 29- 97 (Aug. 7, 1997). Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has satisfied its duty to assist the Veteran in the development of his increased rating claims. In-service and pertinent post-service treatment reports are of record. The Veteran submitted personal statements, representative argument and provided testimony at the 2009 hearing. His Virtual VA electronic file has been reviewed. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board is also satisfied that the AMC has substantially complied with its June 2010 and February 2012 remand directives as they pertain to the increased rating matters decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, VA medical opinions were obtained in July 2010, November 2011, and March 2012. 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 (2007). The VA examinations are more than adequate. The examiners elicited from the Veteran his history of complaints and symptoms and provided pertinent clinical findings detailing the results of the examination to allow for effective evaluation of the Veteran's right knee disabilities, including a thorough discussion of the effect of his symptoms on his functioning. There is no basis to conclude that the VA medical opinions are inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Discussion of the Veteran's December 2009 Travel Board hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue(s) of entitlement to an increased rating for right knee disability was identified. Information was elicited from the Veteran concerning the nature and severity of his right knee disability. Such triggered the Board's determination that a Remand was necessary to provide the Veteran with a more recent examination. Additional VA treatment records were also identified, which were requested and obtained on Remand. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claims. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran has been evaluated as 20 percent disabling for his right knee instability from the pendency of this appeal until it was reduced to 10 percent disabling as of July 26, 2007, in January 2009. The ratings were assigned pursuant to 38 C.F.R. § 4.71, DC 5257. Under DC 5257, a 10 percent rating is warranted for slight impairment, including recurrent subluxation or lateral instability of the knee. An evaluation of 20 percent requires moderate impairment, including recurrent subluxation or lateral instability of the knee. An evaluation of 30 percent requires severe impairment, including recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the 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. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Separate ratings may be assigned for knee disability under DCs 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9 -98. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when 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, DCs 5003 and 5010. Under DC 5260 where flexion is limited to 60 degrees, a noncompensable rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg is rated noncompensable at 5 degrees, 10 percent at 10 degrees, 20 percent at 15 degrees, 30 percent at 20 degrees, 40 percent at 30 degrees, and 50 percent at 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may also be assigned for disability of the same joint under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). VAOPGCPREC 9-04 (Sept. 17, 2004), published at 69 Fed. Reg. 59,990 (2006). Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Evidence relevant to the severity of the Veteran's service-connected right knee instability includes, in addition to his assertions of increased right knee symptomatology, private outpatient treatment notes, VA clinical records, and VA examination reports. A. In excess of 20 percent prior to July 26, 2007 for right knee instability The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. 38 C.F.R. § 3.400(o). As the instant claim for increase was received in November 2005, the period for consideration should include the period from November 2004, one year prior to the date the RO received the Veteran's claim for increase. The record during this timeframe shows the Veteran underwent a QTC examination in February 2005. His history of right knee injury during which his knee cap separated and buckled while he was walking on deck was briefly summarized. His primary complaints were of pain, swelling, and stiffness, which occurred as often as twice a week with each episode lasing the entire day. The Veteran's ability to perform daily functions during flare-ups was limited standing, walking, and exercising. He also related incapacitating episodes as often as five times per year lasting 5 days and resulting in lost from work. The Veteran was not receiving any treatment for his condition. On examination gait and posture were within normal limits. He did not require any assistive devices. The general appearance of the right knee joint was within normal limits. In addition, drawer and McMurray's testing were both within normal limits. Range of motion of the right knee was flexion to 110 degrees and extension to 0 degrees, which was additionally limited after repetitive use by fatigue, weakness, lack of endurance, and incoordination. X-rays findings of the right knee were within normal limits. The diagnosis was right knee strain with instability. A private orthopedic evaluation in June 2005, shows the Veteran continued to complain of right knee pain with difficulty walking and managing stairs. The Veteran also reported a feeling that the knee was "giving out." On examination gait patterns were within normal limits. There was a varus deformity of the right knee of approximately 3-5 degrees and lateral and medial flaring of the tibial surface with medial thrust on gait. There was joint line tenderness on the anterior medial aspect of the knee and patellofemoral joint. Instability testing was negative except for Lachmann's testing appeared positive with 1 to 2+ at firm endpoint. There were no neurovascular deficits. X-rays showed early varus deformity, but were otherwise unremarkable. The diagnosis was internal derangement of the right knee. The Veteran was afforded a VA examination in March 2006. At that time he complained of weakness, stiffness, swelling, redness, giving way, locking, lack of endurance, and dislocation with weight bearing. He also continued to complain of daily pain lasting several hours which he described as squeezing, burning, sharp, and cramping. The intensity level was an 8 on a scale of 1-10. The pain was elicited by physical activity, stress, and light chores and relieved by rest, medication, and steroid shots. The Veteran was able to function with medication and it did not cause any incapacitation. However he was unable to do any yard work, sports, or physical exercise. On examination the Veteran's posture was normal, but he walked with a limp and required a brace for ambulation as the knee would give way. The examiner noted that accurate range of motion testing could not be performed for the right knee because the Veteran would not relax. The right knee remained in a position of 10 degrees joint flexion and 10 degrees extension. The knee remained in a stiff position but was not ankylosed. The diagnosis of internal derangement of the right knee remained the same. The right knee condition had resulted in 9 days lost from work per year. Also of record are radiological findings from March 2006 and July 2006 which show the right knee was negative with no evidence for fracture or other significant bone or soft tissue abnormality. There was no evidence of acute fracture, dislocation, or destructive process. The joint spaces were well preserved and the bone density was normal. There was no evidence of joint effusion and the soft tissues were unremarkable. See March 2006 Radiological Consultation from Southeast X-ray, Inc. and VA X-ray reports of the knees dated in July 2006. Based upon the preceding evidence, the Board finds that prior to July 26, 2007, the criteria for a disability rating in excess of 20 percent were not met. The record reveals very little clinical data to support a finding of more than minimal symptomatology associated with the Veteran's right knee instability and strain. Despite his complaints, objective clinical findings in 2005 and 2006 have shown no significant abnormalities in the right knee, with the exception of an early varus deformity and positive Lachmann's test, suggestive of some evidence of instability. The Board acknowledges the Veteran's reports of "giving way" and his use of the knee brace; however, the Board finds that the objective medical evidence is more persuasive regarding the level of instability that the Veteran experiences. Here, the evidence does not establish manifestations of severe right knee impairment to warrant a 30 percent disability rating under DC 5257 prior to July 26, 2007. A higher additional rating is not warranted pursuant to 38 C.F.R. §§ 4.40 or 4.45 because these provisions cannot be considered with respect to DC 5257. Because this diagnostic code is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment and factors to be considered upon evaluation of the joints, respectively, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Board has also considered whether separate ratings may be assigned for evidence of both recurrent subluxation/lateral instability and X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. While the Veteran has documented right knee pain, the evidence does not include an X-ray finding of degenerative arthritis that would permit the Board to assign a separate compensable disability rating under DC 5003. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), (a painful motion of a major joint caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, even if there is no actual limitation of motion noted clinically). B. In excess of 10 percent since July 26, 2007 for right knee instability and right knee degenerative joint disease The Board notes that, during the period in question, in contrast to the one that preceded it, the severity of the Veteran's right knee instability seemed to have improved beyond what a 20 percent disability rating contemplates. When examined by VA in July 2007, the Veteran's complaints of pain, swelling, and instability had essentially remained unchanged, and were clearly addressed in the examination report. The Veteran symptoms were treated conservatively with pain medications, over the counter ointment, soaks, heat, and ice. He used a right ankle brace and at times cane for severe swelling. He was able to perform activities of daily living although with swelling his wife may help him with dressing. However he was unable to perform activities that required prolonged standing, such as ironing or cooking. The Veteran was employed part-time and able to perform his current job duties despite right knee pain. On examination the Veteran had mild to moderate swelling of the right knee and was tender in all quadrants surrounding the kneecap. There was no evidence of erythema, heat, crepitus, or grinding. Strength was assessed as 4+/5 in the right lower extremity. Sensory examination was grossly intact to light touch and pinprick as well as temperature sense. Patellar reflexes were 2+ on the right, 1+ Achilles, and down going plantar reflexes. Radiological finding showed no acute fracture or dislocations. There was mild degenerative joint disease with mild spurring of the tibial spines, medial, and lateral compartment joint space narrowing and early osteophyte formation within the medial and patellofemoral compartments. No joint effusions were identified. The examiner was unable to assess range of motion as the Veteran refused because of right knee pain and stiffness. The clinical impression was mild degenerative joint disease of the right knee. Based upon these findings, the RO, in a January 2009 rating decision, decreased the Veteran's disability rating to 10 percent, effective July 26, 2007, the date of the VA examination report. Service connection was established for mild degenerative joint disease of the right knee range with an evaluation of 10 percent, effective July 26, 2007, the date of the VA examination report. Medical opinions from the Veteran's private physician indicate the Veteran was experiencing increasing right knee pain with severe pain on extension and evidence of ligamentous instability that required a brace. On examination the Veteran was noted to have severe pain on extension of the knee, instability of both knees, and weakness (1/4 extensors and flexors). The Veteran was also using a cane to help with ambulation and unable to execute stairs unless accompanied by railings and only one step at a time. The medical opinions were not accompanied by any supportive clinical findings. See medical opinions from Baptist Health Center dated September 2007 and March 2009. During VA examination dated July 2010 to assess the current severity of the Veteran's right knee disability. The examiner reviewed and summarized the pertinent evidence contained in claims file, including VA examinations reports dated in February 2005, March 2006, and July 2007. The Veteran's continued right knee complaints and current medical problems were essentially unchanged from the previous evaluation in July 2007. He did note that he continued to work part-time and that his knee did not affect his ability to do his job. On examination the Veteran wore braces on both knees and walked with a limp, but seemed to be able to stride reasonably well. Without the braces he was able to take a few steps, but immediately lunged for something to grab on to. Range of motion was extension to 0 degrees with pain and flexion to 15 degrees with pain. However, the examiner noted that while dressing and undressing the Veteran could flex the right knee to an estimated 80 degrees, but on range of motion testing, he would not budge beyond about 15 degrees. There was no evidence of additional loss of motion fatigue, weakness, lack of endurance, instability, or incoordination with repeated testing. The Veteran had good stability in both mediolateral and anteroposterior planes of the right knee and there was no evidence of effusion. When palpated the Veteran complained of pain, but the examiner could not detect any specific joint line tenderness and during the examination the Veteran maintained his knee in an extended position. X-rays of the right knee showed some loss of joint space that was very minimal with no osteophytes. Although there was some sharpening of the tibial tubercules, this was within the limits of normality. The only abnormality was a patellar altar that the examiner considered a normal variation, which accounted for the dislocation of the Veteran's patella during service. The clinical impression was right knee patella dislocation. When asked to clarify the range of motion results from the July 2010 examination, the VA examiner referred to the conflicting range of motion findings of right knee flexion to 15 degrees during testing and the Veteran's ability to flex his knee to 80 degrees when getting dressed. The examiner concluded that the range of motion during dressing best portrayed the Veteran's disability because during the formal examination he was guarding. See VA addendum November 2011. Subsequently dated VA outpatient treatment records show continued evaluation and treatment of the Veteran for right knee pain. The most significant clinical findings are found in VA physical therapy consultations in October 2010. At that time the therapist noted that she observed the Veteran sitting in the waiting room with this knee flexed in a 90 degree position. However when he was brought back to begin his therapy, he sat with his knees in an extended position, stating that he could not bend them. He was then resistant throughout the examination and she was unable to get a clear reading of strength or movement. The therapist eventually had the Veteran assume a supine position and he was able to move his right knee through the full range of motion. A special test for ligament also seemed to be within full limits. The Veteran did appear to have mild lateral laxity. He was discharged from physical therapy. When examined by VA most recently in March 2012, VA examination. The Veteran complained of knee pain, buckling, and swelling. On range of motion testing right knee flexion was to 75 degrees with pain at 50 degrees and extension was to 0 degrees. Although the Veteran generally kept his knee stiff, it was noted that while removing his pants he was able to flex to the limit described. There was no functional loss and/or functional impairment of the right knee. There was no tenderness or pain to palpation. Strength testing was 5/5 and joint stability testing was within normal limits with no evidence of recurrent patellar subluxation or dislocation. The Veteran continued to use a knee brace. X-rays of the right knee showed early and minimal degenerative joint disease. The Veteran reported that he was currently employed, but because he takes medication for his knees some days he was not able to do all of his work. The diagnosis was arthralgia of the right knee. The remaining evidence of record consists of VA outpatient treatment reports dated from 2012 to 2013, which show continued evaluation and treatment of the Veteran's right knee pain. While he generally reported increased pain and related symptoms, these records do not indicate a worsening in range of motion or incapacitating episodes to warrant a higher evaluation for his right knee disability. Again applying the regulations to the facts in the case, the Board finds that since July 26, 2007, the criteria for a rating in excess of 10 percent are not met. Although the Veteran continues to complain of right knee instability and buckling, there was no objective evidence of appreciable ligamentous laxity of the right knee in VA and private clinical records or on VA examination. While he has repeatedly complained of his right knee giving way, VA examiners have consistently found the Veteran had good stability with no evidence of effusion. Joint stability testing was within normal limits with no evidence of recurrent subluxation or dislocation. See VA examination reports dated in July 2010 and March 2012. The one notable exception is the mild lateral laxity noted during a physical therapy session. See VA physical therapy consultation dated October 6, 2010. The Board finds that this clinical finding and the Veteran's use of a brace arguably suggest some level of instability and thus provides a means to support the 10 percent rating. However the objective medical evidence does not otherwise establish manifestations of moderate knee impairment with recurrent subluxation and lateral instability to warrant a 20 percent evaluation under DC 5257. Likewise, the criteria for a rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. As noted previously during VA examination on July 26, 2007, the Veteran exhibited mild degenerative joint disease established by X-ray and painful motion, thereby warranting a 10 percent disability rating under DCs 5003 and 5010. In this case, the first, and worst, recorded range of motion was during VA examination in July 2010, (0 degrees extension to 15 degrees flexion). However, the probative value of this range of motion was reduced by the examiner's observation that the Veteran's range of motion appeared significantly greater when he was not in the examination setting. As discussed previously the VA examiner indicated that the Veteran was able to flex his knee to at least 80 degrees while dressing and that this was a more accurate portrayal of his range of motion than he had demonstrated during the clinical examination. See VA addendum November 2011. The next range of motion was recorded most recently during the 2012 VA examination (0 degrees extension to 50-75 degrees flexion). Therefore, if strictly rated under range-of-motion diagnostic codes, the Veteran's right knee disability would be rated as 10 percent disabling. There is also no credible evidence of pain on use or flare-ups that result in additional limitation of motion to the extent that the right knee would be more than 10 percent disabling under the limitation-of-motion codes. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's functional loss due to pain is adequately covered by the separate 10 percent rating under DC 5010. He has not identified any functional limitation, which would warrant a higher rating under any applicable rating criteria. In fact, even with complaints of pain and swelling, the clinical record reflects his ability to flex his right knee to at least 50 degrees, with additional motion possible beyond the level of pain, which still leaves the degree of limitation of motion far short of what is required for a rating in excess of 10 percent (i.e., 30 degrees of flexion and/or 15 degrees or more of extension) under DCs 5256 and 5261. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Indeed, the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. Here, a higher rating based on guarding without any quantifiable loss due to actual pain does not serve as basis for an increased rating. The July 2010 and March 2012 VA examiner along with the October 2010 VA physical therapist all gave their estimations as to the Veteran's actual functional loss as opposed to the exaggerated responses he provided due to pain. The Veteran is already being adequately compensated for pain. The range-of-motion findings of record do not support the assignment of separate ratings for impairment of flexion and extension, as the documented ranges reported fall outside the criteria. VAOPGCPREC 9-04. Analogous ratings for impairment of the right knee either are not applicable to the Veteran's case or do not offer a higher disability rating. Here, the only other possibilities for a higher disability evaluation based on limitation of motion of the knee would be under DC 5256, for ankylosis; under DC 5258 for dislocation of the semilunar cartilage; under DC 5262, for nonunion of the tibia and fibula; or under DC 5263 for genu recurvatum, none of which is present in this case. C. Extraschedular Considerations and Conclusion The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the 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). The schedular evaluation in this case is not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards, and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected right knee disabilities, but the required manifestations have not been shown in this case. Moreover, there is no evidence that this disability has required hospitalization at any pertinent time during this appeal, and the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Although the Board has no reason to doubt that the Veteran's symptomatology adversely impacts his employability, this is specifically contemplated by the ratings currently assigned. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints. The credibility of his assertions is somewhat questionable due to the multiple observations that the Veteran over endorsed his symptoms when examined. Nevertheless, inasmuch as he is not competent to identify a specific level of disability as determined by the appropriate diagnostic codes, there is no means to increase the disability rating based on the medical evidence currently of record, especially because no other codes of the rating schedule provide a basis for the application of a higher rating. The Board has also considered the Veteran's assertions that his service-connected right knee causes significant impairment, and he is competent to describe readily visible and identifiable symptoms. However, inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, his assertions do not suffice to assign higher ratings. Consequently, the criteria for the assignment of higher disability ratings for the service-connected right knee disorder are not met. The Board has reviewed the claim mindful of the guidance of Hart, supra. The current levels of disability shown are encompassed by the ratings assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted for this disability for any portion of the time period under consideration. There is no basis for the assignment of further staged ratings. Lastly, the Court has held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected right knee disability prevents him from obtaining and maintaining gainful employment-nor has the Veteran contended otherwise. In fact, he testified before the Board that he works part-time. See Hearing Transcript [Tr.] page 13. The Board acknowledges that he reported that he works a few hours at a time because he has severe joint pain and that because he takes medication for his knees some days he was not able to do all of his work. Importantly, however, he has not alleged that he is unemployable due to his disabilities. Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to a disability rating in excess of 20 percent for right knee instability with strain prior to July 26, 2007 is denied. Entitlement to a disability rating in excess of 10 percent for right knee instability with strain after July 26, 2007 is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. (CONTINUED NEXT PAGE) REMAND Following a review of the Veteran's claims file, the Board finds that the development requested in its February 2012 remand has not been completely performed. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) concluded that the Board had erred when it adjudicated a claim in which the RO had not conformed to the dictates of the earlier Board remand. The Board issued remand directives that instructed the AMC/RO to obtain outstanding treatment records from the Atlanta, Georgia VA Medical Center (VAMC), dated since 2005. The AMC/RO was also instructed to schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed left knee and left hip disorders. The AMC/RO requested and obtained treatment records from the Atlanta VAMC from August 2005 to January 2013. The record also indicates that the Veteran was then afforded a VA examination in March 2012. Following a review of the claims folder and an examination of the Veteran, the examiner concluded that the current left knee and left hip disorders, diagnosed as arthralgia, were not secondary to the Veteran's service connected right knee disabilities. However, he failed to address the question of whether the Veteran had additional disability resulting from aggravation of his left knee and left hip disorders, by his service-connected right knee disabilities. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). In this case, the March 2012 examination report is clearly not responsive to the Remand order and is inadequate because the VA examiner did not address the question of aggravation. Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the claims folder should be returned to the VA examiner who conducted the March 2012 VA examination for an addendum. While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.) Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all clinical records that are not already in the claims file. The Board is particularly interested in records of such treatment that he may have received since January 2013. Document all efforts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further efforts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder, as appropriate. 2. The Veteran's claims file should be returned (if possible to the VA physician who examined him in March 2012, if not to another VA physician who will have an opportunity to review the complete file) for a more detailed and responsive opinion regarding the etiology of the Veteran's left knee and left hip disorders. The claims folder and accompanying treatment records should be provided to the examiner for review in conjunction with the addendum. A notation to the effect that this record review took place should be included in the report. The report should include a discussion of the Veteran's documented medical history and assertions. Another examination of the Veteran need not be conducted unless the examiner determines that one is necessary. After reviewing the record on appeal, the examiner must provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's service-connected right knee disabilities aggravate his left knee and left hip disorder, diagnosed as arthralgia. If no aggravation is found, the examiner should specifically indicate so and explain why that is. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. In rendering an opinion, the examiner is directed to discuss and address the conflicting medical evidence of record, including the opinions provided by the Veteran's private physicians (dated in October 2005, March 2009, September 2007, and November 2009) suggesting a causal connection between his claimed left knee and left hip disorders and his service-connected right knee disability, as well as the March 2006 VA examiner's determination that the disparity between X-ray findings and physical examination suggested malingering. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 3. Also, to help avoid future remand, the AMC/RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is incomplete, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issues. If any benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include all evidence submitted since the most recent supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs