Citation Nr: 1318485	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  05-37 706	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a bilateral lower extremity disorder, to include the femurs, claimed as bilateral lower extremity pain.  

2.  Entitlement to service connection for a left knee disorder.

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

4.  Entitlement to an initial rating in excess of 10 percent for chondromalacia patella with internal derangement of the right knee.  


REPRESENTATION

Veteran represented by:	The American Legion

ATTORNEY FOR THE BOARD

A.  Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from August 1991 to January 1994.  She had additional service in the Army National Guard from January 1994 to July 2003.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision decided in April 2005 and issued in May 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO, in pertinent part, found that new and material evidence had not been submitted to reopen the claim for service connection for history of stress reaction feet and legs (claimed as bilateral lower extremity pain), denied service connection for a bilateral hip and femur condition and a left knee condition, and granted service connection and assigned an initial noncompensable (0 percent) rating for internal derangement of the right knee, effective July 26, 2004.  

In an August 2005 rating decision, the RO granted an initial 10 percent rating for chondromalacia patella with internal derangement of the right knee.  Despite the higher initial rating established for the right knee disability, the Veteran has not been awarded the highest possible rating.  As a result, she is presumed to be seeking the maximum possible benefit and her claim remains in appellate status.  A.B.  v. Brown, 6 Vet. App.  35 (1993).

The Board notes that, in her November 2005 substantive appeal regarding the claims for service connection for a left knee disorder, service connection for a bilateral hip and femur disorder, and a higher initial rating for chondromalacia patella with internal derangement of the right knee, the Veteran requested a hearing before a Veterans Law Judge in Washington, D.C.  In her August 2008 substantive appeal, regarding the request to reopen a claim for service connection for history of stress reactions, feet and legs, and a claim for a higher initial rating for bilateral plantar fasciitis, the Veteran indicated that she did not want a Board hearing.  As was noted by the Board in January 2010, in December 2009, the Veteran's representative clarified that, in regard to a hearing request, the more recent substantive appeal superseded the prior substantive appeal.  As such, the Board finds no outstanding hearing requests of record.   

In January 2010, the Board remanded the claims on appeal for further development.  

In a June 2011, the Board reopened the claim for service connection for a bilateral lower extremity disorder, and remanded the bilateral lower extremities and the other service connection claims for further development.  At that time, the Board also noted that, in regard to the claim for service connection for fibromyalgia, the record suggests that the Veteran's complaints regarding her lower extremities may be related to fibromyalgia and that the relationship between complaints of bilateral lower extremity pain and fibromyalgia should be considered in readjudication of the claims on remand.  

The Board notes that, to the extent that fibromyalgia is considered as part of the claim for service connection for a bilateral lower extremity disorder, that claim continues to be investigated.  Although there is some overlap between a bilateral lower extremity disorder and the other service connection claims being decided herein - service connection for a left knee disorder and an increased rating for a right knee disability, those claims do not encompass the question of fibromyalgia.  

The Board further notes that for the sake of clarity, it has included the question of a bilateral femur disorder, which previous decisions had included in the claim for the bilateral hip disorder, as part of the claim for service connection for a bilateral lower extremity disorder.  When the Veteran made this claim (in July 2004), she claimed service connection for bilateral lower extremity disorder and included hips, knees, and femurs in that claim.  Although the femurs had previously been considered part of the claimed bilateral hip disorder, the Board finds that it is more accurately encompassed in the separate bilateral lower extremities disorder claim, as the femurs are clearly part of the lower extremities.  In contrast, the hips can more easily be deemed as separate from the lower extremities.  Additionally, the re-characterization more accurately reflects the Veteran's actual arguments and assertions.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal.

The issue of service connection for bilateral lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  For the entire appeal period, the Veteran does not have a current diagnosis of a chronic left knee disorder.     

2.  For the entire appeal period, the Veteran's chondromalacia patella with internal derangement of the right knee is manifested by symptomatic removal of semilunar cartilage and scarring that is asymptomatic and not of a size so as to warrant a separate compensable rating, without evidence of compensable limitation of flexion or extension, subluxation or lateral instability, dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, bursitis, degenerative or traumatic arthritis, ankylosis, impairment of the tibia or fibula, or genu recurvatum. 


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for a left knee disorder have not been met.  38 U.S.C.A.  §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R.  §§ 3.102, 3.159, 3.303 (2012).

2.  The criteria for an initial rating in excess of 10 percent for chondromalacia patella with internal derangement of the right knee have not been met.  38 U.S.C.A.  §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R.  §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5259 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for her right knee disability from the original grant of service connection.  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the Veteran's claim for service connection for her right knee disability was granted and an initial rating was assigned in the May 2005 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a)  notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

With regard to the Veteran's claim for service connection for a left knee disorder, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a September 2004 letter, sent prior to the initial unfavorable decision issued in May 2005, advised the Veteran of the evidence and information necessary to substantiate his service connection claim on a direct basis as well as her and VA's respective responsibilities in obtaining such evidence and information.  Additionally, a March 2006 letter, sent after the May 2005 rating decision, advised her of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

While the March 2006 letter was issued after the initial May 2005 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter.  Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006).  The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  In the instant case, after the March 2006 letter was issued, the Veteran's claim was readjudicated in the February 2011 and July 2012 supplemental statements of the case.  Therefore, any defect with respect to the timing of the VCAA notice has been cured. 

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.  Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to her claim, and affording her an examination when appropriate.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

With regard to records, VA has associated the Veteran's service treatment records, National Guard records, Social Security Administration (SSA) records, VA vocational rehabilitation records, and pertinent VA and private medical records with the claims folder.  The Board further notes that the Veteran has requested that the RO obtain numerous private medical records and records from the Seymour Johnson Air Force Base (AFB)/4th Medical Group.  Those records have been obtained and associated with the claims file.  Although the type of the Veteran's National Guard service (January 1994 to July 2003) has not been clarified as to full time/part time, active duty training/inactive duty training, the Board finds that the Veteran is not prejudiced by the lack of this information.  The Veteran does not have a current left knee diagnosis and her only left knee injury of record occurred after her discharge from National Guard service.  Furthermore, as previously noted, to the extent that the Veteran is claiming that her fibromyalgia is related to service, that disorder is encompassed in the bilateral lower extremity disorder claim that is still being investigated.  

Additionally, in the January 2010 and June 2011 Board remands, the Board noted that the Veteran identified more recent medical records.  Per remand instructions, the AOJ has since obtained additional Seymour Air Force Base/4th Medical Group.  The Board had also directed that the AOJ contact the Veteran for appropriate releases regarding Kinston Orthopedic and Physicians East (in the January 2010 Board remand) and additionally from Lenoir Memorial Hospital and clarification of her treatment at Pitt Memorial Hospital and Eastern Regional Pain Specialists (in the June 2011 Board remand).   The AOJ requested that information in January 2010 and July 2011 letters; however, Veteran failed to respond to those requests.  Accordingly, the Board finds that any such evidence that may have been elicited in support of the claims has not been obtained because of the Veteran's inability or unwillingness to cooperate. The duty to assist in the development and the adjudication of claims is not a one-way street.  If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991). 

In the June 2011 remand, the Board also identified additional records that needed to be associated with the claims file.  The AOJ has associated those records, which included SSA records and the Veteran's VA vocational rehabilitation folder.  The Veteran has not indicated that there exist any records of VA or private medical treatment relative to this claim that are not already in the claims file.  Also per remand instructions, the AOJ issued a new supplemental statement of the case in July 2012, which included consideration of evidence associated with the claims file since the August 2005 statement of the case.

In both Board remands, the Board also ordered the AOJ to obtain a new VA examination regarding the Veteran's claim for a higher initial rating for her right knee disability.  The Veteran underwent a new VA examination in August 2010 and December 2011.  The Board notes that, although the December 2011 VA examiner incorrectly noted that the Veteran had not previously had stress fractures, the Board the question before the Board is the Veteran's current knee symptomatology and such an error does not affect findings in that regard.

The Veteran has not been afforded a VA examination in connection with her left knee claim; however, the Board finds that such is not necessary in the instant case.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In the instant case, as will be discussed below, the Veteran does not have a current diagnosis of a chronic left knee disorder and there is no competent and credible indication that she has persistent or recurrent symptoms of a disability.  Moreover, her left knee has been evaluated  in connection with her claim for a higher initial rating for her right knee disability and found to be normal.  Therefore, as there is no evidence of a current diagnosis or persistent or recurrent symptoms of this claimed disability, the Board finds that an examination and opinion are not warranted.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required).

Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App.  384 (1993).   

As previously noted, the Veteran's claims were remanded by the Board in January 2010 and June 2011 for additional development.  As discussed in the preceding paragraphs, all identified private treatment records, VA treatment records, SSA records, and the Veteran's VA vocational rehabilitation folder have been obtained.  Additionally, the Veteran was afforded VA examinations in August 2010 and December 2011 so as to determine the current nature and severity of her right knee disability.  Finally, her claims were readjudicated in the February 2011 and July 2012 supplemental statements of the case.  Therefore, the Board finds that the AOJ has substantially complied with the January 2010 and June 2011 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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). 

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309.   

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature."  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

The Board must weigh any competent lay evidence and to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran generally claimed service connection for a left knee disorder, but did not report any left knee symptoms or an in-service injury.  She has generally claimed, as in a February 2008 statement, that her current conditions started in basic training.   However, in her September 20, 2005 physical therapy initial evaluation, she reported that her knee pain only began only three to four years previously.

The service treatment records do not document any complaints of, or treatment for, any left knee complaints, other than a history of stress reactions to the legs.  For example, in a January 1992 service treatment record noted that the Veteran had such a history and provided a provisional diagnosis of stress reaction of both legs.  

As previously noted, the Veteran's bilateral lower extremity disorder claim, which had initially been characterized as a history of stress reaction to the legs, is still being investigated and will be discussed in the Remand portion of this decision.  Therefore, this aspect of the decision will focus on whether the Veteran has a current left knee disorder separate and distinct from such complaints that is related to her military service. 

Following her July 2003 separation from the National Guard, the medical evidence does not document any complaints of, or treatment for, the left knee for over two years.  Specifically, the first medical record documenting complaints of the left knee is an August 8, 2005 4th Medical Group record wherein the Veteran requested diagnoses for VA disability purposes.  She reported that her left knee was supposed to have surgery soon and that her right knee was sore from favoring it.  The Board notes that none of the medical evidence documents a left knee surgery having ever occurred, but that the Veteran did undergo right knee surgery in May 2006 and is service-connected for a right knee disability.  Additionally, a medical provider examined the Veteran's knees and only reported abnormalities of the right knee.  Upon examination of the left knee, no findings were noted.  The Board finds that the report of a left knee surgery was most likely a misreport for the right knee.

A November 1, 2007 Immediate Care of Goldsboro private medical record documents that the Veteran complained of left knee pain after her knee buckled and she fell to her left side.  The examiner noted some crepitus when the knee was moved around.  The examiner further noted that X-rays of the left knee appeared normal and diagnosed her with "[a]cute left knee, hip and shoulder contusions."

The record does not document any more complaints of, or treatment for, the left knee.  During the December 2011 VA examination, the examiner noted that the "Veteran reports no problems with left knee".  The examiner also noted that the Veteran had full flexion and extension with no objective evidence of painful motion.

The only evidence of record supportive of the Veteran's claim is her contention that she has a chronic left knee disorder due to her service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App.  428, 435 (2011), as to the specific issues in this case, i.e., whether the Veteran has a medically diagnosed left knee disorder, such question falls outside the realm of common knowledge of a lay person as they involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship.  See Jandreau, supra (lay persons not competent to diagnose cancer); see also Woehlaert, supra.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).

The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  In the present case, the Veteran did have one diagnosis of a left knee disorder during the pendency of the claim, specifically her November 2007 finding of an acute left knee contusion.  However, there is no medical evidence of record to indicate that the November 2007 contusion was anything more than the diagnosed "acute" problem that has since resolved.  Indeed, by the time of the December 2011 VA examination, the Veteran specifically reported that she had no complaints regarding her left knee.

The Board concludes that service connection for a left knee disorder is not warranted.  The only diagnosed left knee disorder first manifested years after the Veteran's discharge from service and was directly related to a post-service fall.  Additionally, that diagnosed contusion was noted to be of an acute nature and has since resolved.  Furthermore, there is no medical evidence of record wherein a medical professional has found the Veteran to have a current chronic left knee disorder.

The weight of the credible and probative evidence demonstrates that the Veteran does not have a current, chronic left knee disorder.  As the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Service connection for a left knee disorder is denied.



Initial Rating Claim  

The Veteran contends that her service-connected right knee disability is more severe than indicated by her current 10 percent disability rating.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

In determining the degree of limitation of motion, the provisions of 38 C.F.R. 
§§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

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.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. 

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5019, bursitis is rated on limitation of motion of affected parts as degenerative arthritis.  Diagnostic Code 5003 pertinent to degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved.  

Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees.  For a 10 percent rating, flexion must be limited to 45 degrees.  For a 20 percent rating is warranted where flexion is limited to 30 degrees.  A 30 percent rating may be assigned where flexion is limited to 15 degrees. 

Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees.  A 10 percent rating requires extension limited to 10 degrees.  A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees.  For a 40 percent rating, extension must be limited to 30 degrees.  And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 

38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 

VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability.  However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned.  VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997).  If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated.  See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). 

VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004).

The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a , Diagnostic Code 5258.

Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage.  Pursuant to VAOPGCPREC 9-98, limitation of motion is contemplated in Diagnostic Code 5259. The opinion finds that such removal may resolve restriction of movement caused by tears and displacements of the menisci; however, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, the opinion states that limitation of motion is a relevant consideration under Diagnostic Code 5259.

Historical Background

The RO granted service connection for internal derangement of the right knee, with an initial noncompensable rating , effective July 26, 2004, in the May 2005 rating decision.  In an August 2005 rating decision, as also documented in an August 2005 statement of the case, the RO granted a 10 percent disability rating under Diagnostic Code 5260, for painful or limited motion of the right knee, effective July 26, 2004.

In a March 2005 VA examination, the Veteran complained of right knee pain, stiffness, and swelling, locking up and giving way at times.  She used a cane and knee brace at times, denied episodes of dislocation and subluxation and was a full time student.  The examiner found range of motion of flexion of 0 to 110 degrees, with pain at that point.  The examiner found no change in range of motion with repetitive use and noted that determining additional limitation during flare ups would require ungrounded speculation.  The examiner found no objective evidence of painful motion, edema, effusion, instability, weakness, redness, heat, abnormal movement, but noted that the Veteran guarded movement of the knee and had tenderness medially over the joint line and patella.  The examiner also noted crepitus on McMurray's testing, which also produced pain.  The examiner found no ankylosis.  

A May 2005 4th Medical Group record documented complaints of knee pain for three years, after falling down steps.  The Veteran reported that the knee would go out/buckle, swell, pop and grind.  The examiner found the right knee to be stable, with no ligament laxity, though some tenderness on the medial aspect, but not on the joint line.  

In an August 8, 2005 4th Medical Group record, the examiner noted that the Veteran's knee showed abnormalities of the right knee, with a brace, but no tenderness on palpation of the knee.  The examiner found normal movement of the knees.  

Documented in a June 15, 2005 Kinston Orthopaedic and Sports Medicine Center, P.A.  ("Kinston") record, the examiner found full range of motion, a stable knee x4 and no effusion.  The examiner noted some grating and tenderness over the medial joint line and diagnosed the Veteran with chondromalacia of the right patella, probable torn medial meniscus.  The Veteran reported episodes of buckling and giving way and the examiner recommended arthroscopy.  

A July 15, 2005 4th Medical Group record documented joint pain without full range of motion and noted a right knee brace and some TTP medial joint line.  Other 4th Medical Group records also documented occasions when the Veteran reported that her knee gave out, such as in an August 24, 2005 and September 29, 2005 records.  

In May 4, 2006 Lenoir Memorial Hospital ("Lenoir") pre-op history and physical, the examiner found full range of motion, with stability x4.  The examiner also found no effusion, but grating and tenderness, patellofemoral compression and tenderness over medial joint line.  

A May 4, 2006 Kinston examiner noted that the Veteran underwent an arthroscopy (her first) of the right knee, with a tear of the anterior horn of the medical meniscus that was excised.  

A July 2007 Kinston examiner the Veteran reported that her knee gave way multiple times since February 2007 (when knee buckled and she fell down the stairs).  The examiner found the knee to have full range of motion, that it was stable to varus and valgus stress, that Lachman and posterior drawer signs were negative, and tenderness primarily over joint line and mild tenderness on patellofemoral compression.  X-ray of the knee was normal.

An August 9, 2007 Kinston examiner noted a second arthroscopy of the right knee, for tear of the mid portion of the medial meniscus, behind old anterior meniscal tear, which was excised.  In an August 9, 2007 Lenoir Memorial Hospital pre-op history and physical the examiner found full range of motion.  Lachman and posterior drawer signs negative and tenderness over joint line and compression.  

An August 27, 2007 Kinston examiner found no effusion of the knee and examiner gave her a neoprene knee support with good relief.  A November 6, 2007 Kinston examiner noted no effusion and remained stable, though some minimal tenderness medially and laterally, with significant quadriceps weakness.  The examiner reported that her problem is due to quadriceps weakness.  

A March 2008 Kinston examiner found full range of motion, with no effusion and that the knee was stable x4.  The examiner did note tenderness with patellofemoral compression and palpation over the lateral joint line.  The examiner diagnosed the Veteran with a right knee strain and possible chondromalacia, cannot rule out torn lateral meniscus.  

In an April 17, 2008 Lenoir Memorial Hospital pre-op history and physical, the examiner found full range of motion, with no effusion.  The knee was stable to varus valgus stress, but there was obvious tenderness of patellofemoral compression and palpation over medial joint line.  In the operative report that same day, the examiner noted a post-operative diagnosis of tear mid portion medial meniscus with scuffing of the articular surface of the tibia in the same area.  The Veteran underwent a third knee surgery in April 2008, after slipping on a slick floor and reinjuring the right knee.  

The Veteran underwent a VA examination in August 2010, which included a review of the claims file.  The Veteran complained of giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion and locking episodes once or twice yearly.  She denied dislocation or subluxation and effusions, but reported swelling and tenderness.  She also reported severe flare ups of a day or two every two to three weeks, due to increased motion, prolonged standing and walking, stairs, and exercising.  The Veteran reported that her knee required bracing and a cane normally and that she used a wheelchair if more walking, like for shopping, was required.  

The August 2010 VA examiner found crepitus, tenderness, weakness and guarding of movement.  The examiner noted grinding, but no instability or patellar or meniscus abnormality.  The examiner noted right knee flexion for 0 to 118 degrees and extension normal to 0 degrees.  The examiner also noted objective evidence of pain following repetitive movement, but no additional limitations after repetitions.  The examiner found no joint ankylosis or evidence of leg length inequality.  The examiner diagnosed the appellant with right knee arthralgias/chronic strain/osteoarthritis by history.   The examiner also noted moderate effect on chores and driving, a severe impact on shopping, exercise, sports, recreation and travelling and no impact on feeding, bathing dressing, toileting or grooming.  

In December 2011, the Veteran underwent another VA examination.  The examiner noted diagnoses of status post right knee surgery, edesopathy of the right knee and synovitis.  The Veteran reported three knee surgeries and chronic right knee pain.  She also reported tenderness and swelling without radiating pain, numbness/tingling and five to six flare ups in the past year from strenuous activities requiring bedrest.

The December 2011 VA examiner noted right knee ranges of motion, including: flexion to 120 degrees (pain at 120 degrees) and extension to zero degrees (pain at zero degrees), with the same findings following repetitive use.  The examiner found no additional limitation in range of motion of the knee and the lower leg following repetitive use testing.  The examiner also noted functional loss of pain on movement.  

The December 2011 VA examiner also noted tenderness to palpation for joint line or soft tissues of the knee.  The examiner further found normal findings on testing for posterior instability and medial-lateral instability.   There was also no evidence of history of recurrent patellar subluxation/dislocation.

The December 2011 VA examiner further noted that the Veteran had a meniscus (semilunar cartilage) condition, including meniscal tear, frequent episodes of joint locking and pain.  Following meniscectomy, the Veteran also had residuals of chronic pain with range of motion.  

Analysis 
 
The RO originally granted service-connected for chondromalacia patella with internal derangement of the right knee with a disability rating of 10 percent.  
The RO granted a 10 percent disability rating under Diagnostic Codes 5019-5260, for bursitis rated on limited motion of the right knee.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

In the instant case, the Board notes that the Veteran was originally granted service connection chondromalacia patella with internal derangement of the right knee and, since such time, has been evaluated under Diagnostic Code 5019-5260; however, for the below reasons, the Board finds that the Veteran's right knee disability is more appropriately rated under Diagnostic Code 5259.

Specifically, Diagnostic Code 5260 contemplates limitation of flexion; however, in the instant case, the probative evidence of record fails to demonstrate the presence of a compensable level of limitation.  In this regard, while the Veteran has complained of loss of motion, the medical evidence repeatedly documents findings of a full range of motion of the knee (including June 15, 2005 Kinston, July 15, 2005 4th Medical Group, May 4, 2006 Lenoir, July 2007 Kinston, August 2007 Lenoir, March 2008 Kinston, April 2010 private medical records).  Findings of limited motion included those made by VA examiners.  VA examiners noted flexion ranging from 110 degrees (March 2005 VA examination), 118 degrees (August 2010 VA examination) and 120 degrees (December 2011 VA examination).  Such range of motion findings are not consistent with a compensable rating under Diagnostic Code 5260.  Additionally, although the RO appears to have rated the Veteran under Diagnostic Code 5019 for bursitis as well, no medical evidence of record documents a diagnosis of bursitis of the right knee.

Furthermore, although Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings can be rated at 10 percent for noncompensable limitation of motion, the December 2011 VA examiner specifically found that the Veteran did not have X-ray evidence of arthritis of the right knee and no medical evidence of record has documented such findings.  

Based on the foregoing, the objective medical evidence shows that the Veteran's right knee does not have flexion limited to 45 degrees or less, such that a compensable rating would be warranted for limitation of flexion.  Therefore, the use of Diagnostic Code 5260 is not appropriate.  Rather, as will be discussed in further detail below, the Veteran's right knee disability is manifested by symptomatic removal of semilunar cartilage, such that the disability is more appropriately evaluated under Diagnostic Code 5259.  

In changing the Diagnostic Code under which the Veteran's right knee disability is evaluated, the Board notes that, in Murray v. Shinseki, 24 Vet.App. 420 (2011), the Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation.  38 C.F.R.  § 3.951(b).  Additionally, the Court held that change of Diagnostic Codes under which Veteran's disability was rated was error where the change effectively reduced to zero disability rating which had been in effect for more than 20 years, and thus protected by regulation.  Id.  In the instant case, the Veteran's 10 percent rating under Diagnostic Code 5019-5260 has been in effective since July 26, 2004, i.e., less than 20 years, and therefore, is not protected.  As such, Murray is inapplicable in the instant case.

As indicated previously, Diagnostic Code 5260 pertains to limitation of flexion and Diagnostic Code 5261 pertains to limitation of extension.  In the instant case, the evidence demonstrates that the Veteran's right knee range of motion was no worse than zero to 110 degrees, to include in contemplation of pain, at any point during the appeal period.  Specifically, range of motion of the Veteran's right knee was from zero to 110 degrees with pain at 110 degrees during the March 2005 VA examination.  There was no additional loss of range of motion following repetitive use.  Moreover, range of motion of the right knee was from zero to 118 degrees (with pain at 118 degrees) and no additional loss of function or limitations on repetition in August 2010.   Similarly, in the December 2011 VA examination, the range of motion was from zero to 120 degrees (with pain at 120 degrees) and no additional loss of function or limitations on repetition.  Indeed, the Board notes that in February 2010 the Veteran reported having a full range of motion.

Therefore, the Board finds that the Veteran's limitation of motion of the right knee is manifested by extension to zero degrees and flexion to 110 to 120 degrees, even after repetitive motion and in consideration of symptoms of pain, weakness, fatigue, lack of coordination, and lack of endurance.  In this regard, the Board has specifically considered the Court's holdings in DeLuca, supra, and Mitchell, supra; however, the evidence fails to show that such symptoms result in functional loss of extension of 10 degrees or more or of flexion of 45 degrees or more.  As such, the Veteran is not entitled to a compensable rating under Diagnostic Code 5260 or 5261 for her right knee disability.  Moreover, as will be discussed further herein, the Veteran's right knee disability has been assigned a 10 percent rating under Diagnostic Code 5259, which contemplates limited motion.  Specifically, as noted previously, pursuant to VAOPGCPREC 9-98, limitation of motion is contemplated in Diagnostic Code 5259.  In this regard, the opinion finds that such removal may resolve restriction of movement caused by tears and displacements of the menisci; however, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259.  As such, to assign a separate 10 percent rating under Diagnostic Code 5260 or 5261 would thus doubly compensate the Veteran for the same symptoms already considered and violate the rule against pyramiding. See 38 C.F.R. § 4.14 ; Esteban, supra. 

The Board has also considered whether the Veteran is entitled to a rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability.  However, there is no competent, i.e., clinical, evidence of instability or subluxation of the right knee.  Rather, the objective medical evidence shows that the Veteran's right knee is stable without instability or subluxation.  

In this regard, while the Veteran has complained of occasional 'buckling' of the right knee, instability, giving way, and locking episodes, which necessitated the use of a knee brace and cane, she, as a layperson is not competent to diagnose internal instability or subluxation.  In this regard, while she is competent to report that her knee feels unstable, gives way, or locks, there is no indication that she possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation.  See Woehlaert, supra.  Rather, medical professionals have found no instability of the right knee.  Specifically, the March 2005, August 2010 and December 2011 VA examiners all found no instability.   Similarly, the Veteran's medical providers repeatedly found the Veteran's right knee to be stable, including in the May 2005 4th Medical Group, May 4, 2006 Lenoir, July 2007 Kinston,  November 2007 Kinston, March 2008 Kinston, and April 2008 Lenoir medical records.

Based on the foregoing, the objective medical evidence shows that the Veteran's right knee is stable without instability or subluxation.  Therefore, the use of Diagnostic Code 5257 is not appropriate.  

As previously noted, the Board has found that the Veteran's right knee disability is most appropriately rated under Diagnostic Code 5259, pertaining to symptomatic removal of semilunar cartilage.  "Semilunar cartilage" is defined as either of the crescent-shaped wedges of fibrocartilage found in the knee.  The meniscus is a crescent-shaped wedge of fibrocartilage.  See Dorland's Illustrated Medical Dictionary 1127 (30th ed.  2003).  The Veteran has undergone multiple surgeries to the meniscus, including in May 2006, August 2007, and April 2008.  The Board notes that the Veteran has not claimed, and the evidence of record (including the Kinston records documenting her follow up treatments following her surgeries) do not indicate that she required a month or more of convalescence following her surgeries such that a convalescent rating would be warranted.  In her most recent VA examination, in December 2011, the examiner also found that the Veteran had meniscal tear, with frequent episodes of joint "locking" and pain, indicating that it is symptomatic.  

In this regard, the Board has also considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5258, pertaining to the dislocation of semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint.  In the instant case, the evidence fails to demonstrate that the Veteran's right meniscus is symptomatic of effusion.  The March 2005 VA examiner found no objective evidence of effusion.  The December 2011 VA examiner specifically did not note joint effusion.  The private medical providers similarly found no effusion, as documented in June 15, 2005 Kinston, May 4, 2006 Lenoir, August 27, 2007 Kinston, November 6, 2007 Kinston, March 2008 Kinston, and April 17, 2007 Lenoir records.  Therefore, Diagnostic Code 5258 is not applicable.  

Additionally, as the evidence of record fails to demonstrate degenerative or traumatic arthritis, ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5003, 5010, 5256, 5262, or 5263, respectively, and, therefore, such Diagnostic Codes are inapplicable in the instant case and need not be further considered.

In reaching this decision, the Board has specifically considered the Veteran's contentions with respect to the nature of her service-connected right knee disability and notes that her lay testimony is competent to describe certain symptoms associated with such disability, to include flare-ups, pain, swelling, popping, clicking, weakness, and tenderness, and sensations of locking, giving way, and instability.  The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and the Board finds that, even in contemplation of such symptoms, the right knee disability does not result in functional loss that more nearly approximates ratings in excess of 10 percent.  In this regard, despite such reports, her flexion and extension are not limited to a compensable degree.  Additionally, as discussed previously, the competent evidence fails to demonstrate instability or subluxation.  Therefore, the Board finds that her symptoms are contemplated by the 10 percent disability rating assigned.  As such, while the Board accepts the Veteran's lay evidence with regard to the matters she is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the right knee pathology.

The Board has also considered whether a separate compensable rating is warranted for the Veteran's scars resulting from her treatment of her right knee disability, in the form of knee operations.  As noted by the December 2011 VA examiner, the Veteran does not have painful or unstable scars or scars in total area greater than 39 square centimeters (6 square inches).  Therefore, the Board finds, for the whole appeal period, that the scarring associated with the Veteran's right knee surgeries is asymptomatic and not of a size so as to warrant a separate compensable rating.

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right knee disability; however, the Board finds that her symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disabilities is not warranted.

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  

Second, 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 'marked interference with employment' and 'frequent periods of hospitalization.' Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right knee disability with the established criteria found in the rating schedule.  The Board finds that the Veteran's right knee symptomatology is fully addressed by the rating criteria under which such disability is rated.  In this regard, the Veteran has been assigned a 10 percent rating for the knee based on her symptoms that result in functional loss due to symptomatic semilunar cartilage removal.  There are no additional symptoms of her right knee that are not addressed by the rating schedule, as that rating code contemplates pain, limitation of motion, locking, and other symptoms associated with the loss of cartilage.  Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for her service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Moreover, to the extent that the Veteran's knee disability may interfere with her employment, the Board notes that the Veteran alleges that she is unemployed due to her nonservice-connected fibromyalgia, and that any difficulty she may have had to work due to knee flare-ups, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

In Rice v. Shinseki, 22 Vet. App.  447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Veteran has not raised the issue in regard to the right knee and has rather indicated unemployability due to her nonservice-connected fibromyalgia (which is still being investigated by the Board).  Additionally, during the course of the appeal, the Veteran pursued a separate claim for TDIU, which the RO denied in an unappealed January 2009 rating decision.  Such adjudication reflects the permissive bifurcation of the increased rating claim from the TDIU claim.  See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim).  Moreover, while acknowledging the Rice decision, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court held that it is permissive for VA to address a claim for TDIU independently of other claims, including increased rating and service connection claims.  Id. at 315.  Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review.  Therefore, the Board finds that the issue of entitlement to a TDIU does not warrant consideration.

The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for right knee chondromalacia patella with internal derangement.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and her initial rating claim must be denied.  38 U.S.C.A. 
§ 5107; 38 C.F.R. §§ 4.3, 4.7.


ORDER

Service connection for a left knee disorder is denied.

An initial rating in excess of 10 percent for right chondromalacia patella with internal derangement is denied.

REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the remainder of the Veteran's claims so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

The Veteran asserts that her fibromyalgia began during her active duty military service, specifically during basic training, and that her bilateral lower extremities pain was the beginning of fibromyalgia.  In a February 2008 statement, she claimed that her fibromyalgia was "dormant until a serious or traumatic event occurs and starts the disease process" and thus claimed that it was triggered by the stresses of her basic training and the physical requirements of active duty service.  

The Veteran has also alternatively asserted, including through the lay statements provided by family members and National Guard members who served with her (dated from April 2006 to June 2007), that she started to display fibromyalgia symptoms, including fatigue and migraines, while serving full-time with the National Guard.  

The exact nature of the Veteran's National Guard service is critical to the final outcome of the case.  The provisions of 38 U.S.C.A. § 1110 only allow for service connection "[f]or disability resulting from personal injury suffered or disease contracted .  .  .  in the active military, naval, and air service."Active military, naval, and air service, in turn, includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  See 38 U.S.C.A. § 101(24).

ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state.  INACDUTRA generally means duty (other than full-time duty) prescribed for Reserves, and duty (other than full-time duty) performed by a member of the National Guard of any state.  38 U.S.C.A. § 101(21), (22), (23), (24), (27); 38 C.F.R. § 3.6(a), (c), (d).  Thus, while service connection may be granted for any injury or disease that had its onset during active duty (or during ACDUTRA if such was incurred or aggravated in the line of duty), current disabilities must be shown to be related only to injuries and not diseases, sustained in INACDUTRA for service connected to be granted.

The Board initially finds that a remand is necessary in order to clarify the Veteran's duty status at various points during her National Guard service from January 1994 until July 2003.  The Veteran has claimed to have been serving full time with the National Guard for most of that time period, until her medical discharge.  The record, however, suggests that she served on periods of ACDUTRA and INACDUTRA.  

The Veteran's April 2008 TDIU application and Social Security Administration Work History Report document varying reports of the character of service she performed with the National Guard, which include reports of work as a civilian employee and as active duty servicemember.  Additionally, the lay statements from the Veteran's family members and other National Guard members indicate that, at times, she performed full time National Guard service.  Her Certificate of Release or Discharge from Active Duty (DD 214) appears to indicate that she served on active duty for the entire time period.  However, her Army National Guard Retirement Points History Statement indicates both ACDUTRA and INACDUTRA periods over the course of her National Guard service.  

As such, the AOJ should obtain a list of the dates of active duty, ACDUTRA, and INACDUTRA, for the time period from January 1994 until July 2003, while the Veteran was serving in the Army National Guard from the National Personnel Records Center or any other appropriate source.  The AOJ should also clarify if the Veteran was actually a civilian employee for the National Guard and, if so, the time periods involved.

In regard to the bilateral lower extremity disorder claim, to include the femurs, in the June 2011 remand, the Board noted that the July 2008 VA examination to evaluate the Veteran's claimed stress fractures of both legs did not include a claims file review (though the Veteran had provided binders of medical evidence).  The examiner noted that there were no stress fractures on examination, and review of the service treatment records provided by the Veteran were negative for bilateral lower extremity stress fractures per bone scan and X-ray evidence.  She opined that it was less likely as not that the Veteran's current fibromyalgia had its onset in military service.  In providing a rationale for this opinion, she stated that, according to ACR (American College of Rheumatology), all patients with fibromyalgia exhibit the core features of widespread musculoskeletal pains along with multiple tender points.  She noted that the Veteran had reported pain to her bilateral lower extremities only, and, therefore, did not meet the minimal requirement for a diagnosis of fibromyalgia.  

The Veteran underwent another VA examination in December 2011.  That VA examiner diagnosed the Veteran with fibromyalgia, but found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner explained that there was no evidence in the service treatment record for chronicity of care for bilateral leg pain during military service.  However, the Board notes that such a medical opinion does not take into account the numerous service treatment records documenting treatments for the bilateral lower extremities and the Veteran has reported chronic bilateral lower extremities pain.  The Board also notes that the Veteran has proffered an argument, as in a February 2008 statement, that her fibromyalgia was "dormant until a serious or traumatic event occurs and starts the disease process" and thus contends that it was triggered by the stresses of her basic training and the physical requirements of active duty service.  

Additionally, in regard to the bilateral hip claim, although the December 2011 VA examiner diagnosed the Veteran with a bilateral hip strain, the VA examiner did not provide a medical opinion as to the etiology of that disability.  The Veteran has claimed to have had chronic hip pain since her initial period of basic training.  Furthermore, the treatment records document complaints of hip pain while the Veteran was still serving in the National Guard.  For example, in a July 29, 2002 4th Medical Group record, the examiner noted that the Veteran complained of right knee pain radiating to the hip joint on lateral rotation of the leg.  The examiner found a right anterior pelvic shift.  

Therefore, for the foregoing reasons, in regard to both the bilateral lower extremity, including femurs, disorder and bilateral hip disorder, new medical opinions are necessary and should also consider the character of the Veteran's National Guard service.  If the Veteran had any periods of active duty during which she had a hip or bilateral lower extremities injury or incurred a disease, a medical opinion should be obtained regarding a potential medical nexus between these periods of active duty and the Veteran's current bilateral hip and/or bilateral lower extremity disorders.  For the periods of ACDUTRA, the examiner should determine if the Veteran developed a disease, such as fibromyalgia, during that time period.  If the Veteran was on ACDUTRA or INACDUTRA at the time of any injury, a medical opinion should be obtained regarding a potential medical nexus between the injury(ies) sustained during these period(s) and her current disability.  

Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, 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).  Therefore, as the December 2011 VA examination report is not adequate, a remand is necessary in order to obtain  addendum opinions so as to determine the nature and etiology of any current bilateral lower extremity disorder, including the femurs, and/or bilateral hip disorder, especially with consideration of the Veteran's competent lay testimony.

The Board also notes that the Veteran receives VA treatment through the North Carolina VA Health Care System and the most recent treatment records are dated in November 2006.   Additionally, she receives continuing treatment at the Seymour Johnson Air Force Base (AFB)/4th Medical Group, and the most recent records are from April 2010.  Therefore, while on remand, VA treatment records from the North Carolina VA Health Care System (from November 2006 to the present) and from the Seymour Johnson AFB/4th Medical Group (from April 2010 to the present) present should also be obtained for consideration in the appeal.

Accordingly, the case is REMANDED for the following actions:

1.  The AOJ should determine from the National Personnel Records Center or any other appropriate source whether, and if so when, the Veteran served as a full time member of the National Guard.  Such a determination should include a list of the Veteran's dates of active duty, ACDUTRA, and INACDUTRA, for the time period from January 1994 until July 2003, while she was serving in the Army National Guard.  The AOJ should also clarify whether the Veteran was serving as a civilian employee for the National Guard and if so the time period(s) she did so.

All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2.  The AOJ should obtain VA treatment records from the North Carolina VA Health Care System (dated from November 2006 to the present) and treatment records from the Seymour Johnson AFB/4th Medical Group (from April 2010 to the present).  

All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  After obtaining all outstanding records, the AOJ should have the December 2011 VA examiner provide an addendum opinion to determine the likelihood that there is an etiological relationship between the Veteran's claimed bilateral lower extremities, including the femurs, and/or bilateral hip disorder, and her service, including her National Guard service.  If the December 2011 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

The AOJ should specifically identify periods of the Veteran's active duty, ACDUTRA and INACDUTRA for the examiner's benefit.

Based on a review of the claims file, including treatment records, the lay evidence of record, and a copy of this REMAND, the examiner is requested is requested to answer questions and render opinions as to the following: 

In relation to the bilateral lower extremity, including femurs, disorder claim:

a)  Identify all current diagnoses of a bilateral lower extremity disorder, including of the femurs, to include fibromyalgia.  

b)  Is it at least as likely as not (50% probability or greater) that any currently diagnosed bilateral lower extremity disorder, including of the femurs, to include fibromyalgia, began in or is otherwise related to the Veteran's active duty service?  The examiner should also specifically discuss the Veteran's contention that her fibromyalgia was triggered by the stresses of  her basic training and the physical requirements of active duty service.

c)  Is it at least as likely as not (50% probability or greater) that any currently diagnosed bilateral lower extremity disorder, including of the femurs, to include fibromyalgia, developed during a period of ACDUTRA?  

d)  If the examiner diagnoses the Veteran with a bilateral lower extremity injury, but not a disease, is it at least as likely as not (50% probability or greater) that it developed during a period of INACDUTRA?

In relation to the bilateral hip disorder claim:

a)  Identify all current diagnosis of a bilateral hip disorder.  

b)  Is it at least as likely as not (50% probability or greater) that any currently diagnosed bilateral hip disorder began in or is otherwise related to the Veteran's active duty service?  

c)  Is it at least as likely as not (50% probability or greater) that any currently diagnosed bilateral hip disorder developed during a period of ACDUTRA?  

d)  If the examiner diagnoses the Veteran with a bilateral hip injury, but not a disease, is it at least as likely as not (50% probability or greater) that it developed during a period of INACDUTRA?

The term "at least as likely as not" does not mean within the realm of medical possibility, but 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 that conclusion as it is to find against it.

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology and the results of her prior VA examinations.  An explanation for any opinion offered should be provided.  

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
A.  JAEGER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs