Citation Nr: 1320660	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  08-21 129	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a right hip disorder, including as secondary to chronic medial collateral ligament strains of the right and left knees.

2.  Entitlement to higher ratings for mechanical low back pain syndrome with facet arthropathy at L5-S1, evaluated as 10-percent disabling from December 15, 2005 to October 17, 2012, and as 20-percent disabling since October 18, 2012.

3.  Entitlement to an initial rating higher than 10 percent for chronic medial collateral ligament strain of the right knee.

4.  Entitlement to an initial rating higher than 10 percent for chronic medial collateral ligament strain of the left knee.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).



REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active military service from November 2004 to December 2005.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2012, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  In that remand, the Board explained that, although the Veteran initially had requested a hearing at the RO before the Board, he since had withdrawn that hearing request by letter dated in September 2008.  38 C.F.R. § 20.704(e) (2012).

VA's paperless claims processing system ("Virtual VA") includes additional pertinent documents in support of these claims, which the RO considered in the first instance in a Supplemental Statement of the Case (SSOC) issued in March 2013.

The claim of entitlement to higher ratings for the mechanical low back pain syndrome with facet arthropathy at L5-S1, evaluated as 10-percent disabling from December 15, 2005 to October 17, 2012, and as 20-percent disabling since October 18, 2012, is again being remanded to the RO via the AMC.  Whereas the Board, instead, is going ahead and deciding the remaining claims.


FINDINGS OF FACT

1.  The Veteran does not currently have a right hip disability and has not shown he has at any point since the filing of this claim.

2.  Since the beginning of the appeal period, his right knee disability has been shown to involve mild degenerative changes and patellar low-grade chondromalacia and has manifested as pain, limited movement with pain, not increased on repetitive use, excess fatigability, incoordination, disturbance of locomotion and instability.  

3.  He has no more than slight instability of his right knee.

4.  Since the beginning of the appeal period, his left knee disability has been shown to involve a meniscal tear and has manifested as tenderness, pain, limited movement with pain, increased on repetitive use, excess fatigability, incoordination, disturbance of locomotion, instability and joint locking.  

5.  He has no more than slight instability of his left knee.

6.  Service connection is currently in effect for bronchial asthma with chronic bronchitis, rated as 30-percent disabling effectively since December 15, 2005; mechanical low back pain syndrome with facet arthropathy at L5-S1, rated as 
10-percent disabling from December 15, 2005 to October 17, 2012, and as 
20-percent disabling since October 18, 2012; chronic medial collateral ligament strains of the knees, so left and right, with each knee rated as 10-percent disabled effectively since December 15, 2005 (that is, apart from the additional, separate, 10 percent ratings also being granted in this decision for the instability); and hypertension, rated as 0-percent disabling, so noncompensable, effectively since December 15, 2005.

7.  His service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment.


CONCLUSIONS OF LAW

1.  It is not shown the Veteran has a right hip disability that was incurred in or aggravated by his active military service, that may be presumed to have been, or that is proximately due to, the result of, or aggravated by his service-connected bilateral (right and left) knee disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 

2.  The criteria are not met for an initial rating higher than 10 percent for the chronic medial collateral ligament strain of the right knee.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5260, 5261 (2012).

3.  The criteria are met, however, for a separate 10 percent rating for slight instability of the right knee.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5257 (2012).

4.  The criteria are not met for an initial rating higher than 10 percent for the chronic medial collateral ligament strain of the left knee.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5260, 5261 (2012).

5.  The criteria are met, however, for a separate 10 percent rating for slight instability of the left knee.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5257 (2012).

6.  But the criteria are not met for a TDIU.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

A.  Notice

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

When a claim arises in the context of a Veteran trying to establish his/her entitlement to service connection for a claimed disability, the VCAA notice must apprise him/her of all five elements of the claim, which are:  (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  


But if service connection is granted and, in response, the Veteran appeals a "downstream" issue such as the compensation level assigned for the disability or effective date, then VA does not have to provide additional VCAA notice concerning these downstream elements of the claim because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been granted, so substantiated.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved.  

Moreover, according to the U. S. Court of Appeals for the Federal Circuit, in a case as here involving a claim for an increased rating, so including a derivative claim for a TDIU, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise the Veteran that, to substantiate his claim, he/she must submit medical or lay evidence showing the effect any worsening in his disability has on his/her employment and daily life.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Rather, VA need only provide generic notice advising him/her of the evidentiary and legal criteria for establishing his/her entitlement to greater compensation.  Id.

Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively "cure" this error by providing any necessary VCAA notice and then readjudicating the claim in an SOC or supplemental SOC (SSOC) such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The RO provided the Veteran VCAA notice concerning these claims by way of letters dated in January 2006, February 2006 and August 2012.  One of these letters was not sent in the preferred sequence, having been provided after, rather than before, the initial adjudication of these claims.  But the RO rectified ("cured") this timing defect in the provision of the notice by since readjudicating the claims in a February 2013 SSOC.  Mayfield v. Nicholson, 499 F.3d at 1317.   

These letters satisfy the content requirements noted above.  They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so.  They apprise him of his and VA's respective responsibilities in obtaining this supporting evidence.  They include all necessary information on the downstream elements of disability ratings and effective dates in the event service connection, a higher initial rating, or a TDIU is granted.  They identify the evidence the RO requested and/or received in support of the claims and the evidence it was responsible for obtaining versus that the Veteran was responsible for providing.  They indicate the RO will make reasonable efforts to assist him in obtaining all other outstanding evidence - provided he identifies its source(s), but that it is his responsibility to ensure VA's receipt of this and any other pertinent evidence. 

VA provided the Veteran further notice in a remand issued in June 2012.  Therein, the Board elaborated on the type of documents still needed to substantiate his claims, including evidence confirming he has a right hip disability as alleged, VA examination reports confirming the alleged worsening of his service-connected knee disabilities, and evidence of his unemployability on account of his service-connected disabilities.  The Board also informed him there were outstanding treatment records at the VARO in Miami, Florida, still needing to be obtained and associated with his claim file in support of his claims.  

He has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notice.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  Neither he nor his representative asserts that VA failed to comply with VCAA's notice provisions.

B.  Assistance

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

The RO in this case satisfied its duty to assist the Veteran in the development of his claims by trying to secure and associate with the claims file all documents he identified as being potentially pertinent to his claims, including his service and 
post-service evaluation and treatment records.  

The RO also afforded him VA compensation examinations, during which examiners discussed the etiology of his right hip complaints, the severity of his right and left knee disabilities, and his employability.  After he underwent the first VA examination, he asserted the examiner had failed to conduct certain pertinent testing.  The Board resultantly determined the report of that evaluation was inadequate and remanded the case back to the RO to rectify this deficiency.  When VA provides a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).


Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, neither the Veteran nor his representative asserts there are any other outstanding records needing to be obtained in support of these claims or that the most recent examination reports and opinions are inadequate, including for rating purposes, so as to in turn require additional examinations.  38 C.F.R. § 4.2.

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claims.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).


In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical and electronic ("Virtual VA") files.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that it discuss, certainly not in exhaustive detail, each and every piece of evidence the Veteran has submitted or which VA has obtained on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence).  Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).

II.  Analysis

A.  Service Connection for a Claimed Right Hip Disability

This claim of entitlement to service connection for a right hip disability is predicated on the notion that it is the result of the Veteran's active military service, meaning directly or presumptively incurred during his service, or that it alternatively developed since service, over time, on account of his service-connected right and left knee disabilities, so is secondarily related to his service.  According to written statements he and his representative submitted during the course of this appeal, including in January 2006, March 2007, August 2007, April 2008 and September 2012, he first experienced pain intermittently in his legs as shin splints and stress fractures and then developed knee pain secondary to injuries.  Eventually this pain became more frequent and severe and began affecting his hip and lower back.  Allegedly, all of these problems stem from an injury in service, which necessitated an early separation from service.  He asserts that he had no right hip problems on entrance into the service.  He contends that he and various doctors believe his hip pain is secondary to his knee disabilities because it manifests when he uses his knees and shifts his weight to compensate for his knee injuries.  They also feel it is due to his abnormal gait, which results from his knee disabilities.  

He points out that he first reported a right hip condition during his service, at which time Navy Orthopedics Portsmouth told him it was occurring because he was favoring his left knee and had an improper gait.  He asserts that he next reported a right hip condition in December 2005, prior to discharge.

He has submitted lay statements in support of his allegations, including from 
E. G., a serviceman, T. C., his mother, P. P., his friend, and J. C., his spouse.  According to them, he sustained knee and hip injuries and experienced associated pain during service and has continued to experience hip pain since his discharge.  According to E. G., because of the knee and hip damage the Veteran suffered during service, he was unable to meet the physical requirements necessary to continue in service and his health has deteriorated since.  According to T. C., prior to service the Veteran participated and excelled in many sports and activities and, on entrance into service, was in fantastic physical condition.  However, she recalls him calling her during boot camp and telling her that he had sustained several injuries, which the military later determined to be permanent, ultimately resulting in his premature separation from service.  Since his discharge from service, she has witnessed the grinding in his knees and hips.  P.P. also has witnessed the Veteran's knee symptoms, including grinding and swelling, and has seen his knees give out, but did not mention his hips.  According to J. C., the Veteran experiences constant pain, including in his knees and hips.  

Considering these lay statements in conjunction with all other pertinent evidence in the claims file and applicable laws and regulations and precedent cases, the Board finds that the preponderance of the evidence is against granting service connection for a right hip disability.  Although the Veteran reported and received treatment for right hip pain during his service and has continued to experience pain since his discharge, no competent and credible medical authority has attributed the pain or any other right hip symptom to an actual underlying disability, including in the way of a pertinent clinical diagnosis.


Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  But mere symptoms alone, so including pain, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a ratable disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).

Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a), (b) (2012).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though, as will be explained, not always, required to associate the claimed condition with service or a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); McQueen v. West, 13 Vet. App. 237 (1999).


When deciding claims, the Board is required to consider all potential bases of entitlement - so direct, presumptive, and secondary.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  The Board has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. 

Going back first to the notions of direct and presumptive service connection, in interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to direct service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or correlation between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)).  

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that a showing continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id. at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id. at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible).  See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  


So in certain instances lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

This is not always the case, however, as in certain other instances laypersons have not been found competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

To reiterate, the competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").


In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

In this case, as alleged, the Veteran entered service in good, sound, physical health with no hip abnormalities reported or shown in the course of his March 2004 military enlistment examination.  Thereafter, he sustained injuries affecting his legs.  In boot camp, in November 2004, he was placed on light duty due to tibial stress fractures and leg and knee pain.  He began using crutches and examiners noted or diagnosed overuse syndrome, a knee sprain, a contusion of the soft tissues of the knee, right hip bursitis manifested by tingling and pain (beginning in January 2005) and low back pain.  After boot camp ended, his stress fractures resolved, but he was unable to run and the pain continued to manifest despite inactivity and the use of a brace and crutches.  In January 2005, an examiner noted increased stress on the knee from a gait disturbance, but did not mention that the disturbance was affecting the right hip.  In August 2005, an examiner recommended an administrative separation.  

On separation examination, the Veteran reported that he had had, in part, numbness or tingling, recurrent back pain, impaired use of the arms, legs, hands or feet, swollen or painful joints, knee trouble, a bone, joint or other deformity and broken (cracked or fractured) bones.  He also reported that he had used a corrective device, continued to have sharp pain in the knees, hips and back, experienced numbness in his right leg when his hip caught, and had a lesion in his right leg/knee.  The examiner noted, in part, that the Veteran had pain in his knees, hips and back, stiffness, giving out and tingling.  He diagnosed a left knee contusion and tibial plateau stress fractures, but no consequent or underlying right hip disability, including to account for the Veteran's complaints of pain.

Within months of discharge, beginning in February 2006, the Veteran sought treatment for lower extremity complaints, but primarily involving his left knee.  At the time, he utilized a cane to ambulate.  Magnetic resonance imaging (MRI) revealed a left knee tear, but a bone scan of the hips performed in March 2006 showed no abnormalities, including fractures, dislocations or arthritic changes.

In September and December 2006, the Veteran presented to treatment visits wearing a brace, walking with a cane or with an antalgic gait and/or limping, but due to his knee and back problems, not any hip problems.  In fact, neither he nor any medical professional mentioned the right hip.  During two December 2006 visits, doctors observed he had back pain that was radiating into his lower extremities, but again, none attributed any reported symptoms to a right hip disability.

The Veteran had VA joints and general medical examinations in May and June 2006, during which he reported that he had right hip pain and a sensation of popping and grinding in his right hip.  Neither examiner noted any right hip abnormalities, per se, although one diagnosed right hip pain of unknown etiology.  That examiner also noted the Veteran had a questionable stress fracture of the proximal tibia, which may have started his knee problems, and that these problems may have led to his right knee, low back and hip conditions.

During VA back, knee and lower leg examinations more recently performed in October 2012, the Veteran reported right hip pain and occasional popping with ambulation.  One examiner indicated the Veteran had been diagnosed with right hip bursitis in service, but that the condition had resolved.  Neither diagnosed a right hip disability, including any manifested by the reported right hip pain and popping.

The other examiner concluded the claimed condition is less likely than not incurred in or caused by the in-service injury, event or illness.  He based this conclusion on the fact that there was no intrinsic hip pathology identified on examination and no evidence of right hip bursitis.  He explained that the right hip bursitis shown during service likely was a self limited condition and that the pain the Veteran was experiencing can be referred pain from his back and knee conditions.  He reiterated that there was no right hip diagnosis or disability and indicated the Veteran does not have a leg length discrepancy that would interfere with his gait cycle and cause hip pathology.

There is no doubt the Veteran is having problems with his right hip.  Multiple medical professionals have documented his reports of right hip pain and popping, and there are lay statements of record confirming right hip symptoms.  Even more importantly, though, no competent and credible medical authority has attributed this symptom (the pain) to any underlying right hip disability.  Although the Veteran and the others mentioned assert he has an underlying right hip disability and are competent to describe certain right hip symptoms such as pain and popping, since both are readily observable even by laymen, there are not equally competent to actually diagnose an underlying right hip disability or to ascribe the symptoms experienced to a particular disability.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377.  To reiterate, mere symptoms alone, including pain, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute an actual ratable disability for which service connection may be granted.  See again Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer  v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Here, though, inasmuch as there is no competent and credible evidence of record establishing the Veteran currently has a right hip disability or that he has at any time since the filing of this claim, including especially to account for his complaints of pain and popping in this hip, there necessarily is no present-day disability to relate or attribute to his military service, including by way of a service-connected disability, to in turn establish his entitlement to service connection.  Moreover, because, for the reasons and bases discussed, the preponderance of the evidence is against his claim, there is no reasonable doubt concerning his entitlement to be resolved in his favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

B.  Higher Ratings for the Bilateral (Right and Left) Knee Disability

The Veteran is claiming entitlement to initial ratings higher than 10 percent for his right and left knee disabilities on the basis these disabilities continue to deteriorate or worsen (noting that his pain is more intense and frequent and that his knees are giving out more frequently, causing falls).  He asserts that he also should be assigned separate ratings for right and left knee instability under Diagnostic Code (DC) 5257 because, even though the most recent VA examiner noted no joint instability, she also noted instability of station on repetitive testing.  

According to written statements the Veteran has submitted during the course of this appeal, he has constant pain in both of his knees, worse in cool weather, and his knees give out.  Allegedly he should be assigned a 20 percent rating for his right knee disability and a 30 percent rating for his left knee disability.  He claims they both involve two or more minor joint groups (anterior cruciate ligament (ACL) and patellar on the right and lateral and medial meniscus on the left) and result in incapacitating exacerbations (three to four times monthly on the right and 15 to 20 times monthly on the left).  He also claims that his knees have necessitated the intermittent use of crutches and a cane since 2004, interfere with his ability to walk and stand, slow and limit his movement, and cause weakness, incoordination, a lack of balance and poor endurance.  

According to E. G., T. C., P. P. and J. C., they have witnessed the Veteran's knee pain and know that it interferes with his ability to walk and stand, play sports, pursue certain employment options such as becoming a police officer, and provide and care for and play with his family, including his young child.  T. C. and P. P. also have witnessed the Veteran's knees giving out, causing him to fall.  P. P. has witnessed a grinding, swollen knee filled with fluid.  J. C. has seen the Veteran crawl up stairs on his hands and knees due to his inability to ascend the stairs otherwise.

Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 

A disability may require re-evaluation in accordance with changes in a Veteran's condition.  In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.


Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. §§ 4.40, 4.45 (2012).

As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations:  less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45); see also Johnson v. Brown, 9 Vet. App. 7 (1996) (provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion). 


With any form of arthritis, painful motion is an important factor.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012).  A compensable rating under DC 5003 and § 4.59 for painful motion is assignable where arthritis is established by X-ray findings, even if there is no actual limitation of motion of the affected joint.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  In such a case, painful motion is considered limited motion even though a particular range of motion is possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Limitation of motion may be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003 (2012). 

The Court (CAVC) has held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Later that month, however, the Court explained that pain must actually affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  In other words, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Id.

VA's Office of General Counsel (OGC) has issued precedent opinions pertinent to claims of entitlement to higher initial or increased evaluations for knee disabilities.  These OGC opinions hold that a Veteran who has X-ray evidence of arthritis and instability of the knee may be evaluated separately under DCs 5003 and 5257, respectively, provided additional disability is shown.  VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOGCPREC 9-98 (August 14, 1998).  

Additional disability is shown when a Veteran meets the criteria for at least a noncompensable evaluation under either DC 5260 or 5261, which require flexion limited to 60 degrees or extension limited to 5 degrees, or when there is painful motion such that it adds to the actual limitation of motion shown under DC 5260 or DC 5261.  9-98 at paragraphs 1, 6.  A separate rating also may be granted under DC 5003 and 38 C.F.R. § 4.59, when a Veteran technically has full range of motion that is inhibited by pain.  9-98 at paragraphs 4, 6; see also Lichtenfels v. Derwinski, 1 Vet. App. at 488.

VA's General Counsel also held in another precedent opinion, VAOPGCPREC 
9-2004 (September 17, 2004), that a claimant who has both limitation of flexion and extension of the same knee must be rated separately under DCs 5260 and 5261, respectively, if a compensable degree of disability as to each is shown.

1.  Schedular Ratings

The RO has evaluated the Veteran's right and left knee disabilities as 10-percent disabling pursuant to DCs 5099-5014.  Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional DC is shown after the hyphen.  DC 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a.  38 C.F.R. §§ 4.20, 4.27 (2012).  DC 5014 is used to denote the rating criteria for osteomalacia.  Osteomalacia is usually rated under the criteria for degenerative or traumatic arthritis of the knee, denoted at DC 5003.  38 C.F.R. § 4.71a.  Also pertinent to these claims are DCs 5256, 5257, 5260 and 5261.

DC 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved - which, here, are DC 5260 for limitation of knee or leg flexion and DC 5261 for limitation of knee or leg extension.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups.  A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating episodes.  38 C.F.R. § 4.71a, DC 5003 (2012).

DC 5260 provides that a 0 percent rating is assignable for flexion of the leg limited to 60 degrees.  A 10 percent rating is assignable for flexion of the leg limited to 45 degrees.  A 20 percent rating is assignable for flexion of the leg limited to 30 degrees.  A 30 percent rating is assignable for flexion of the leg limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5260 (2012).

DC 5261 provides that a 0 percent rating is assignable for extension of the leg limited to 5 degrees.  A 10 percent rating is assignable for extension of the leg limited to 10 degrees.  A 20 percent rating is assignable for extension of the leg limited to 15 degrees.  A 30 percent rating is assignable for extension of the leg limited to 20 degrees.  A 40 percent rating is assignable for extension of the leg limited to 30 degrees.  A 50 percent rating is assignable for extension of the leg limited to 45 degrees.  38 C.F.R. § 4.71a, DC 5260 (2012).

DC 5257 concerns "other" impairment of the knee, including recurrent subluxation or lateral instability, and provides that a 10 percent rating is assignable for slight consequent disability.  A 20 percent rating is assignable for moderate consequent disability.  Whereas a 30 percent rating is assignable for severe consequent disability.  38 C.F.R. § 4.71a, DC 5257 (2012).

DC 5256 provides that a rating of at least 30 percent is assignable for ankylosis of the knee.  38 C.F.R. § 4.71a, DC 5256 (2012).  

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II (2012).

Turning now to the facts and circumstances of this particular case.  The evidence establishes the Veteran's right and left knee disability pictures do not more nearly approximate the criteria for initial ratings higher than 10 percent under DC 5256, 5260 or 5261 at any time during the course of this appeal.  Since December 2005, his right knee disability has been shown to involve mild degenerative changes and patellar low-grade chondromalacia and has manifested as pain, limited movement with pain (but not so limited as to warrant a higher initial rating), not increased on repetitive use, excess fatigability, incoordination, disturbance of locomotion and instability.  His left knee disability has been shown to involve a meniscal tear and has manifested as tenderness, pain, limited movement with pain, increased on repetitive use (but not so limited as to warrant a higher initial rating), excess fatigability, incoordination, disturbance of locomotion, instability and joint locking. 

That said, the evidence also establishes that his right and left knee disability pictures establish his entitlement to separate 10 percent ratings under DC 5257 because he has slight instability of each knee.  Since 2005 during outpatient consultations, evaluating clinicians have noted that his knees require the use of a cane and that his left knee in particular requires the use of a brace, aids typically prescribed to combat the effects of weight bearing, resultant stress and instability.  Although the remainder of the evidence conflicts as to whether the knees are unstable, there is at least as much probative evidence indicating they are as there is indicating they are not.  And in this circumstance of equally probative evidence both for and against this notion the Veteran is given the benefit of the doubt that there is instability of his knees.  38 C.F.R. §§ 3.102, 4.3.

According to Virtual VA, from 2005 to 2006, he presented complaining of bilateral knee pain, utilizing crutches.  Testing conducted in 2005, including X-rays, MRI and bone scans, initially revealed degenerative changes in the right knee and a possible contusion in the left.  In 2006, however, additional testing revealed patellar low-grade chondromalacia on the right and a meniscal tear on the left.  

During treatment visits, medical professionals objectively confirmed bilateral knee pain and noted right knee tenderness and left knee edema.  They also noted the Veteran could not exercise due to the bilateral knee pain and used crutches and a brace.

During the course of the appeal, including in May 2006, June 2006 and October 2012, he had VA compensation examinations of his right and left knees.  During the May 2006 examination, he reported that he had an aching left knee and popping and grinding in his right knee, used a cane and wore a soft brace on his left knee, favored his left knee, and overcompensated with his right knee.  The examiner noted no abnormalities of the right knee, including tenderness, limited motion or instability.  The examiner noted tenderness and pain in the left knee, the latter increased on repetitive use, and limited motion on repetitive use (but still from 0 to 145 degrees with pain).  He indicated the Veteran did not have left knee instability.

During the June 2006 VA examination, the Veteran reported that he had right knee pain, for which he wore a knee brace.  The examiner objectively confirmed bilateral knee problems, but noted a brace on the left knee.  He also noted the Veteran was using a cane and had an unstable left leg when he walked to the examination table and that he used the cane and brace to stabilize his left knee.  

During the October 2012 VA examination, the Veteran reported severe bilateral knee pain, worse on the left and with ambulation and prolonged standing, and a need to wear a brace intermittently.  He also reported flare-ups and, when asked to describe them, referred to his prior comment regarding when the pain is worse.  The examiner noted full range of motion of both knees and indicated that, on repetitive testing and during flare-ups, the Veteran had no additional motion loss.  She then noted the following right and left knee findings on repetitive testing:  tenderness or pain; less movement than normal; excess fatigability; incoordination, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing and weight-bearing.  The examiner also confirmed the use of a brace, but did not specify the knee on which it is used and noted that the knee disabilities do not impact the Veteran's ability to work.

In an addendum opinion dated in January 2013, which the examiner provided on VA's request, she clarified that there had been an error in her report and that there was no right or left knee instability of station found on examination. 

These disabilities do not cause limitation of motion of the right or left knee, including on repetitive use and during flare-ups, to the extent required to assign initial ratings higher than 10 percent under DC 5256, 5260 or 5261.

DC 5256, as mentioned, requires evidence of ankylosis.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Here, while there is no disputing the Veteran has some limitation of motion of his knees, including especially when considering the effect of his pain, his motion is not so restricted as to constitute or be the functional equivalent of ankylosis, and the VA compensation examiners all but have confirmed as much.

He once reported flare-ups of knee pain, but he did not indicate it caused additional limitation of motion and no evaluating doctor or other clinician noted additional limitation of motion even during such flare-ups or prolonged or repetitive-use testing.

In addition, contrary to the Veteran's assertion, the pain in his knees is not affecting more than one major joint, so as to in turn allow for higher initial ratings under DCs 5099-5014 and DC 5003.  For the purpose of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45(f).  The parts of the knee to which the Veteran refers as being affected by the pain are not joints.  An ACL is a ligament; the patella refers to the kneecap; and the meniscus is cartilage.

In the absence of evidence of more severe limitation of flexion, or any limitation of extension, initial schedular ratings higher than 10 percent may not be assigned the Veteran's right and left knee disabilities under DC 5256, 5260 or 5261.

The evidence as mentioned, however, conflicts regarding whether he has instability of his right and left knees.  He has been wearing a brace on his left knee during the entire appeal period and, during this period, one clinician specifically noted an unstable left knee.  Although the most recent VA examiner also observed instability of station of the left knee on repetitive use, she later indicated that she had erred in noting such a finding.  Nevertheless, given that a brace typically is used to stabilize a joint, the Board finds there is the required showing of instability in the left knee so as to in turn warrant additional compensation for this in the way of a separate rating under DC 5257.  Since, however, the instability in this knee is at worst mild, the Veteran is entitled to at most a 10 percent rating under DC 5257.

With regards to his right knee, there is less evidence of instability.  He noted once that he wore a brace on his right knee, presumably for stabilization purposes.  In addition. the most recent VA examiner noted instability of station of the right knee on repetitive use, but later indicated that she had erred in noting such a finding.  Given that medical professionals confirmed the use of a cane and brace in the early part of the appeal, but did not specify the knee(s) for which the cane was needed, that the Veteran reported using a brace on his right knee, which he is competent to do, and the examiner did not explain the basis of her recant (she also noted the use of a brace, which would suggest instability), the Board is resolving this reasonable doubt in the Veteran's favor and finding that he also has instability of his right knee to warrant a separate rating for this for this other knee as well.  But since the instability of this knee is at worst mild, only a 10 percent rating is warranted under DC 5257.


2.  Extra-schedular Consideration

In considering these claims for higher ratings for the right and left knee disabilities, the Board also has considered whether the Veteran is entitled to an even greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran'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 (C&P) Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1).


Here, the Veteran has not specifically raised a claim for higher initial ratings on an extra-schedular basis.  He alleges that multiple orthopedic and respiratory disabilities interfere with his ability to pursue the career he wants, that of a police officer.  He does not, however, assert that the Rating Schedule does not sufficiently contemplate the extent of his bilateral knee disability, including in terms of his specific symptoms, etc., much less that the disability causes marked interference with his current job or employment if only considering this disability, meaning above and beyond that contemplated by the schedular ratings assigned for his right and left knee disabilities.  Also keep in mind the Board is granting additional compensation, in the way of separate ratings, to compensate him for his instability, that is, aside from his chronic pain, etc.  Accordingly, referral for consideration of an extraschedular rating is unwarranted.  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

C.  TDIU

The Veteran has not specifically claimed entitlement to a TDIU.  Rather, in the June 2012 remand, the Board explained that the record implicitly had raised a derivative claim of entitlement to this additional benefit.  See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2011).  In a letter since received in September 2012, however, the Veteran indicated he wants to remain as productive as possible and does not want to be listed as unemployable unless absolutely necessary.

According to a May 2013 written statement from his representative, "[t]he Veteran apparently seeks entitlement to TDIU...[but] is employed with the police department...."  Indeed, in a letter received in September 2012, his spouse confirms he is working with the police department, although he has had to take off from work a great deal of time due to doctor's appointments, breathing difficulties and pain.  She explains that, although he is employed, he is unable to advance to a sworn police officer position due to an inability to pass physical examinations and academy training and that, as a result, he makes less money, has a lower salary cap and receives fewer medical insurance and retirement benefits.  She adds that, as his disability progresses, he will be unable to fulfill the duties of even his current position and, potentially, will not be able to work at all.

A total disability evaluation may be assigned where the schedular evaluation is less than total (i.e., less than 100 percent) when the disabled person is unable to 
secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities - provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Disabilities resulting from common etiology or single accident, or affecting a single bodily system or both upper or lower extremities, will be considered as one disability for the above purposes of determining whether the Veteran has sufficient rating.  38 C.F.R. § 4.16(a) (2012).

The Veteran fails to satisfy the percentage requirements of § 4.16(a) because, although he has several service-connected disabilities, including combinable disabilities of the lower extremities, none is rated as at least 40-percent disabling.  This, then, makes his combined rating for these disabilities moot, even if the granting of the separate 10 percent additional ratings in this decision for his bilateral knee instability perhaps would be sufficient to in turn increase his overall or combined rating for his disabilities to the minimally required level of 70 percent.  See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).

When a claimant does not meet the percentage requirements of § 4.16(a) for consideration of a TDIU, he still may establish entitlement to this benefit on an extra-schedular basis under the alternative provisions of § 4.16(b) - if it is shown he is unemployable on account of service-connected disability or disabilities.  In this circumstance, however, the Board would be precluded from assigning an extra-schedular TDIU in the first instance, having instead to remand the claim to the RO for referral to the Director of VA's C&P Service for this special consideration.  The rating board is to include in its submission a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue.  38 C.F.R. § 4.16(b) (2012).

While the regulations do not define "substantially gainful occupation", VA adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the similar term of "substantially gainful employment" as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides."  See also Faust v. West, 13 Vet. App. 342 (2000) (defining "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veteran's earned annual income....)

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 

Id.  


Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment."  38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

A Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his/her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a claimant is unemployed or has difficulty obtaining employment, however, is not enough.  A high rating in itself constitutes recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment.  Id.

That said, requiring a Veteran to prove that he/she is 100-percent or totally unemployable is different than requiring he prove that he cannot obtain and maintain substantially gainful employment.  The use of the word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability.  A requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

A referral in this case is unnecessary as the evidence is clear that the Veteran does not meet even the alternative criteria for a TDIU, even apparently by his own admission and to a somewhat lesser extent his wife's.  They both acknowledge he continues to work for the police force, so presumably in a substantially gainful capacity.  And although there is mention of him often needing to take time off from work to attend medical appointments, etc., so presumably including because of his service-connected disabilities, this is factored into the schedular ratings for these disabilities.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.

The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)  . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.").

The Veteran's occupational background and educational attainment are not known fully as he never actually filed or raised a claim for a TDIU, which would have necessitated the submission of an application (VA Form 21-8940) containing such information.  He did, however, seek vocational rehabilitation services during the course of this appeal and, following such rehabilitation, found a job.  Although, according to his spouse, it is not the job he wants (police officer position), it provides him a salary greater than the minimum wage and other benefits.  Neither he nor his spouse asserts that it is just marginal employment, and this also is not otherwise shown.


There is no doubt the Veteran is significantly impaired as a result of his service-connected disabilities.  But in assigning him schedular ratings for these disabilities, VA is acknowledging that his impairment makes it difficult to obtain and keep employment.  See again Van Hoose and 38 C.F.R. § 4.1.  At this point, however, the impairment does not interfere completely with his ability to obtain and retain substantially gainful employment.  If in the future the impairment becomes that severe, he can and indeed should, on his own initiative, file a claim for a TDIU.  This benefit is not however awarded merely on the potentiality that unemployability may one day eventually occur.

So as it stands, there simply is no competent and credible evidence, medical or lay, establishing that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment.  For these reasons and bases, the Board concludes that a preponderance of the evidence is against this claim for a TDIU.  In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, this doctrine is not for application.  38 C.F.R. § 4.3.


ORDER

The claim of entitlement to service connection for a right hip disorder, including as secondary to chronic medial collateral ligament strains of the right and left knees, is denied.

An initial rating higher than 10 percent for chronic medial collateral ligament strain of the right knee is denied.

But a separate 10 percent rating is granted for slight instability of the right knee, subject to the statutes and regulations governing the payment of VA compensation.


An initial rating higher than 10 percent for chronic medial collateral ligament strain of the left knee is denied.

But a separate 10 percent rating also is granted for slight instability of the left knee, also subject to the statutes and regulations governing the payment of VA compensation.

A TDIU, however, is denied.


REMAND

The Board sincerely regrets the additional delay that will result from this additional remand before deciding whether the Veteran is entitled to higher ratings for his mechanical low back pain syndrome with facet arthropathy at L5-S1, evaluated as 10-percent disabling from December 15, 2005 to October 17, 2012, and as 
20-percent disabling since October 18, 2012.  But the additional development of this remaining claim is necessary to ensure there is a complete record and to give this claim every possible consideration.

VA previously assisted the Veteran in developing this claim in October 2012 by affording him a VA spine examination for the purpose of reassessing the severity of his low back disability.  During this examination, the examiner observed the Veteran had guarding or muscle spasm of the thoracolumbar spine that is severe enough to result in an abnormal gait.  This finding entitled the Veteran to an increase in the rating assigned for his low back disability, effective as of the date of that examination, which the RO effectuated in the February 2013 SSOC.  There are other findings in the examination report, however, which also might entitle him to an even higher rating for this disability.


During the examination, he reported that he had flare-ups of back symptoms when ambulating and standing for a prolonged period of time, which impact his ability to function.  He did not describe how precisely these flare-ups impact him, including whether they further limit his lumbar spine motion, or how long he had been experiencing these flare-ups (he earlier did not report any during a prior VA joints examination performed in May 2006), and the most recent examiner did not further discuss this matter.

In addition, during the examination, the examiner conducted repetitive-use testing and then noted the Veteran had additional limitation of motion on such testing.  She also noted the following contributing factors of disability on repetitive use:  less movement than normal; pain on movement; disturbance of locomotion; and interference with sitting, standing and/or weight bearing.  Despite these findings, she recorded the exact same degrees of motion loss as she recorded on initial testing.  

Given the incomplete and conflicting range of motion results, it is unclear as to what extent the Veteran's lumbar spine motion is additionally limited during 
flare-ups and on prolonged or repetitive use.  Also, according to Virtual VA, a medical professional indicated the Veteran had decreased range of back flexion in December 2006, a few months after the initial VA examination, but given the lack of further information of record, it is unclear as to what extent that motion worsened and whether it did so secondary to the subsequently reported flare-ups.  The Veteran's description of the flare-ups, including when they first manifested and whether and to what extent they further limited his lumbar spine motion during the course of this appeal, is crucial in this case as a higher initial rating may be assigned his low back disability if, including during flare-ups or on repetitive use, it results in sufficiently severe motion loss (forward flexion of 31 to 60 degrees for the period extending from December 15, 2005 to October 17, 2012 and forward flexion of 30 degrees or less for the period beginning on October 18, 2012).  See 38 C.F.R. § 4.71a, DC 5242 (2012).


Accordingly, this remaining claim is REMANDED for the following additional development and consideration.

1.  Return the claims file to the VA examiner who evaluated the Veteran's spine in October 2012 for an addendum opinion discussing the severity of his low back disability.  Ask the examiner to review her prior opinion and a copy of this remand before proceeding with the following instructions.  

a.  Contact the Veteran and ask him to 
(i) indicate when, during the course of this appeal, he began experiencing flare-ups of his low back symptoms; and (ii) whether and, in lay person terms, to what extent during the reported time period such 
flare-ups further hindered his ability to move his lumbar spine.

b.  Based on the information the Veteran provides, objectively determine the extent to which (in terms of degrees) his flare-ups of low back pain further limited his range of motion, including during the period extending from December 15, 2005 to October 17, 2012, and the period beginning on October 18, 2012.

c.  Review the October 2012 repetitive-use findings noted above and explain why, given those findings, the examiner recorded the exact same degrees of motion loss on initial testing as she did on repetitive testing.  If she did so in error, correct the degrees of motion noted on repetitive use.

d.  Provide complete rationale with references to the clinical evidence of record for all opinions expressed and conclusions reached.

2.  Review the examiner's addendum opinion to ensure it includes all requested information.  If it does not, return it to the examiner for correction.  38 C.F.R. § 4.2.

3.  Then readjudicate this claim for higher ratings for the low back disability in light of this and all other additional evidence, including that contained in Virtual VA.  If this claim is not granted to the Veteran's satisfaction, send him another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.  

The Board intimates no opinion as to the ultimate disposition of the claim being remanded, but advises the Veteran that he has the right to submit additional evidence and argument concerning this claim.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).  This claim must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs