Citation Nr: 1322844	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  06-37 472	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to an evaluation in excess of 30 percent for the service-connected post-operative residuals of medial and meniscus tears of the left knee (hereinafter "left knee disability"), prior to March 26, 2008; to an evaluation in excess of 40 percent for the left knee disability, from March 26, 2008 to September 20, 2011; and to an evaluation in excess of 50 percent for the left knee disability, since September 20, 2011.  

2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (hereinafter "TDIU").  


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from May 1984 to August 1992.  

This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from an August 2005 rating determination of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in North Little Rock, Arkansas.  

In an October 2007 rating decision, issued in November 2007, the RO granted a 30 percent rating for the Veteran's left knee disability, effective May 18, 2005, the date of the claim for an increased rating.  Because this increased rating did not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim remained in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal).  

The Veteran then testified at a Board hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") in February 2008.  A transcript of that proceeding is of record.  

The Board remanded the case in October 2008 to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, D.C. for further development, to include providing the Veteran with Veterans Claims Assistance Act (hereinafter "VCAA") corrective notice under Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), obtaining outstanding VA treatment records, and scheduling a VA examination and medical opinion.  

In an August 2010 rating decision, issued in September 2010, the AMC granted a 40 percent rating for the Veteran's left knee disability, effective March 26, 2008, the date of a private treatment record showing increased disability.  Because this increased rating did not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim continued to remain in appellate status.  AB, 6 Vet. App. 35, 38 (1993).  

The Board again remanded the case in August 2011 to the RO via AMC for further development, to include obtaining outstanding medical treatment records obtaining Social Security Administration (hereinafter "SSA") records, obtaining Workers' Compensation records, and scheduling a VA examination and medical opinion.  The Board notes that VA and private treatment records, SSA records and Workers' Compensation records have been associated with the claims file, and the Veteran underwent a VA examination and medical opinion in September 2011.  As such, the Board finds that the development directed in the prior remands has been substantially completed.  Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Most recently, in a December 2012 rating decision, the AMC granted a 50 percent rating for the Veteran's left knee disability, effective September 20, 2011, the date of a VA examination report showing increased disability.  Because this increased rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's claim remains in appellate status.  AB, 6 Vet. App. 35, 38 (1993).  The claim now returns for appellate review.  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence; however, no additional documents pertinent to the present appeal have been identified.  

To the extent indicated hereinbelow, the issue of entitlement to a TDIU has been reasonably raised by the record, and is presently in appellate status before the Board as a component of the increased rating claim on appeal.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Hence, this claim has been listed on the title page, and is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required.  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished.  

2. Prior to March 26, 2008, the Veteran's left disability symptomatology had been productive of no more than limitation of flexion of the left leg to15 degrees; without evidence of ankylosis of the knee in flexion between 10 degrees and 20 degrees, extension of the leg limited to 30 degrees, nonunion of the tibia and fibula with loose motion requiring a brace, or any recurrent subluxation and lateral instability.  

3. From March 26, 2008 to September 20, 2011, the Veteran's left knee disability symptomatology had been productive of no more than limitation of extension of the left leg to 30 degrees; without evidence of ankylosis of the knee in flexion between 20 degrees and 45 degrees, extension of the leg limited to 45 degrees, or any recurrent subluxation and lateral instability.  

4. Since September 20, 2011, the Veteran's left knee disability symptomatology has been productive of no more than limitation of extension of the left leg to 45 degrees; without evidence of extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more, or any recurrent subluxation and lateral instability.  



CONCLUSIONS OF LAW

1. The criteria for the assignment of an evaluation in excess of 30 percent for service-connected left knee disability, prior to March 26, 2008, had not been met.  See 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.25, 4.40, 4.45, 4.71a, Diagnostic Codes (hereinafter "DCs") 5256, 5257, 5261 and 5262 (2012).  

2. The criteria for the assignment of an evaluation in excess of 40 percent for service-connected left knee disability, from March 26, 2008 to September 20, 2011, had not been met.  See 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.25, 4.40, 4.45, 4.71a, DCs 5256, 5257 and 5261 (2012).  

3. The criteria for the assignment of an evaluation in excess of 50 percent for service-connected left knee disability, since September 2011, have not been met.  See 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.25, 4.40, 4.45, 4.71a, DCs 5256 and 5257 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App.").  

The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

A Veteran bears the "'evidentiary burden' to establish all elements of a claim, including the nexus requirement."  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim.  See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); 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").  A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'"  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  

Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991).  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Thus, a layperson is competent to report on the onset and continuity of his symptomatology.  See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet. App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.   See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  


Duties to Notify and Assist

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran 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.  See 38 C.F.R. § 3.159(b)(1).  

In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

VCAA letters dated in June 2005, June 2006, November 2008, February 2009, August 2011, November 2011 and December 2011, collectively explained the evidence necessary to substantiate the claim for an increased rating for the left knee disability, and informed the Veteran of his and VA's respective duties for obtaining evidence.  Also, the November 2008 and February 2009 VCAA letters advised the Veteran of the type of evidence needed to substantiate the claim for an increased rating, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned, in compliance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The June 2006, November 2008 and February 2009 letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  As noted, the claim was readjudicated in the December 2012 rating determination.  Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains post-service medical treatment records, Workers' Compensation records, SSA records, and reports of VA examinations and addenda (also known in the record as a Disability Benefits Questionnaire or "DBQ") (July 2005, September 2007, January 2009, May 2010 and September 2011).  With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination reports generally reflect review of the claims file, examination of the Veteran, and description and evaluation of his disability in accordance with the criteria for rating disabilities of the knee.  In particular, these examination findings are sufficient for proper application of the relevant rating criteria and are adequate for the purpose of adjudication of the left knee disability.  

At the February 2008 hearing, the undersigned VLJ and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim, including identifying relevant types of evidence.  Overall, the hearing was legally sufficient and the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal.  He has been given ample opportunity to present evidence and argument in support of his claim.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012).  

The Merits of the Claim-Entitlement to Increased Ratings

On May 18, 2005, the Veteran filed a claim for entitlement to an increased rating for his service-connected left knee disability.  He contends that he is entitled to a disability rating in excess of 30 percent for the left knee disability, prior to March 26, 2008; to a disability rating in excess of 40 percent, from March 26, 2008 to September 20, 2011; and to a disability rating in excess of 50 percent, since September 20, 2011.  See 38 C.F.R. §§ 4.20 and 4.71a (2012).  The Board must analyze the evidence from the earliest possible date upon which such increase could be awarded, namely, one year prior to the RO's receipt of his May 18, 2005, increased rating claim.  See 38 C.F.R. § 3.400(o)(2); accord Hart v. Mansfield, 21 Vet. App. at 509-10 (2007).  

An Appellant's Post Remand Brief, dated in May 2013, indicates the Veteran requested a 50 percent rating under Diagnostic Code 5261, and a separate 30 percent rating under Diagnostic Code 5257, for the entire period of the appeal.  

After a full review of the record, and as further explained below, the Board finds that the preponderance of the evidence weighs is against the assignment of increased evaluations for the left knee disability.  

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In evaluating the severity of a particular disability it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2012).  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207-08 (1994).  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  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 the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  However, "disability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition."  Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010).  Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms."  Id.  In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Id.  However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions.  Id.  

It is important to note generally that the joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.  Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (indicating the joining of criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except, as here, in the case of a diagnostic code that uses successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.)  

The Veteran's service-connected left knee disability is currently rated pursuant to 38 C.F.R. § 4.71a, under the General Rating Formula for Diseases and Injuries of the Knee and Leg (DCs 5256-5263).  Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II (2012).  

When an evaluation of a disability is based on limitation of motion, VA must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Although pain may cause a functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  

With any form of arthritis, painful motion is an important factor of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  

VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2012).  VA's General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding.  See VAOPGCPREC 23-97 (July 1, 1997).  

In VAOPGCPREC 9-98, VA's General Counsel  reiterated that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion.  For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion.  Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261.  The Veteran's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.  

The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that 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, and the provisions of 4.40, 4.45, and 4.59 must be considered.  

In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).  Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.  

Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis.  

Diagnostic Code 5003 in turn provides that degenerative arthritis (that is established by X-ray findings) will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  

Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  

Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive.  

When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a.  

Diagnostic Code 5256 provides a 60 percent rating will be assigned for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more; a 50 percent rating will be assigned for ankylosis of the knee in flexion between 20 degrees and 45 degrees; a 40 percent rating will be assigned for ankylosis of the knee in flexion between 10 degrees and 20 degrees; and a 30 percent rating will be assigned for ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  See 38 C.F.R. § 4.71a, DC 5256 (2012).  

Diagnostic Code 5257 provides a 30 percent rating will be assigned for severe, recurrent subluxation or lateral instability of the knee; a 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability of the knee; and a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability of the knee.  See 38 C.F.R. § 4.71a, DC 5257 (2012).  

Diagnostic Code 5258 provides a 20 percent rating for cartilage, semilunar, dislocated with frequent episodes of "locking," pain and effusion into the joint; and Diagnostic Code 5259 provides a 10 percent rating for cartilage, semilunar, removal of, symptomatic.  See 38 C.F.R. § 4.71a, DCs 5258 and 5259 (2012).  

Diagnostic Code 5260 provides a 30 percent rating for flexion of the leg limited to 15 degrees; a 20 percent rating for flexion limited to 30 degrees; a 10 percent rating for flexion limited to 45 degrees; and a 0 percent rating for flexion limited to 60 degrees.  See 38 C.F.R. § 4.71a, DC 5260 (2012).  Diagnostic Code 5261 provides a 50 percent rating for extension of the leg limited to 45 degrees; a 40 percent rating for extension limited to 30 degrees; a 30 percent rating for extension limited to 20 degrees; a 20 percent rating for extension limited to 15 degrees; a 10 percent rating for extension limited to 10 degrees; and a 0 percent rating for extension limited to 5 degrees.  See 38 C.F.R. § 4.71a, DC 5261 (2012).  

Diagnostic Code 5262 provides a 40 percent rating for nonunion of the tibia and fibula with loose motion, requiring a brace; a 30 percent rating for malunion with marked knee or ankle disability; a 20 percent rating for malunion with moderate knee or ankle disability; and a 10 percent rating for malunion with slight knee or ankle disability.  See 38 C.F.R. § 4.71a, DC 5262 (2012).  Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).  See 38 C.F.R. § 4.71a, DC 5263 (2012).  

The Board's selection of a Diagnostic Code under which to rate a claimant's disability by analogy is considered a factual determination and is reviewed under the Court's "arbitrary and capricious" standard.  38 U.S.C. § 7261(a)(3)(A); Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  The Board must provide an adequate statement of reasons or bases for its analysis under a particular section of the Diagnostic Code.  Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006).  The Board's duty to provide an adequate statement of reasons or bases is heightened in cases in which a condition is assigned a rating by analogy to other conditions.  See Suttman v. Brown, 5 Vet. App. 127, 134 (1993).  

The Board notes, as discussed in detail below, that at no point in the appeal does the Veteran's left knee disability warrant compensation for separate ratings under Diagnostic Codes 5257 and 5003 given the lack of evidence substantiating instability and arthritis.  VAOPGCPREC 23-97 (July 1, 1997).  Moreover, throughout the appeal period the Veteran has had no more than favorable ankylosis, and has not had dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, so disability ratings under these diagnostic codes is not appropriate.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262, and 5263.  The Board notes that private treatment records show that the Veteran underwent arthroscopy in 2005, which revealed Grade II to III changes noted on the medial femoral condyle, which were smoothed down with a high-speed shaver and contoured; and significant medial plica was noted with a concomitant trochlea on the medial femoral condyle, which was also taken down with a shaver.  However, limitation of motion, a relevant consideration under Diagnostic Code 5259 and the provisions of 4.40, 4.45, and 4.59, are already contemplated by the Veteran's current rating.  38 C.F.R. § 4.71a.  In fact, consideration has been provided regarding whether there has been any additional functional loss not contemplated in the assigned ratings.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  While the record has shown that the Veteran, at times, has experienced fatigability, restricted or excess movement of the joint and pain on movement, the currently assigned evaluations take into consideration painful motion and restricted or excess movement of the joint.  Accordingly, increased evaluation on this basis is not warranted.  

Finally, consideration of a separate evaluation for scars has also been considered.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804 (2012).  However, while the a June 2008 Workers' Compensation record indicates observations of small punctuate scars on the left knee which presumably represented the arthroscopic sites for previous surgery, and a July 2008 VA addendum reveals the Veteran was status-post left knee scope, which took place in June, and that he reported one of the incision sites at the top of his knee had never healed, various VA examination reports dated throughout the record have not indicated any scar(s) that are deep or that cause limited motion; that are superficial and that do not cause limited motion, and that cover an area or areas greater than 144 square inches (929 square centimeters); that are superficial and unstable; and/or that are superficial and painful on examination.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7804.  In fact, on May 2010 VA examination, no scarring was appreciated, and the examiner had to search very closely to see minimal residuals of arthroscopic portals, which had not created any scarring.  Accordingly, a separate evaluation for scars is not warranted.  

Evaluating the left knee prior to March 26, 2008

On May 18, 2005 the Veteran filed his claim for an increased rating for his service-connected left knee disability.  He complained that his knee hurt all the time, to the point where his sleep was impaired.  He also reported that while working he was unable to get up and down without help, and described symptoms of popping and giving out all of the time in the left knee.  

As noted, in an October 2007 rating decision, issued in November 2007, the RO granted a 30 percent rating for the Veteran's left knee disability, effective May 18, 2005, the date of the claim for an increased rating.  The RO based this grant on a finding that a VA examination revealed extension of the leg was limited to 20 degrees.  The RO indicated that although the Veteran did not meet the exact criteria for the 30 percent evaluation based on limited flexion, his range of motion fell between two evaluations and the higher one was assigned.  The RO also determined that there was no evidence of laxity to warrant a separate evaluation, and the Veteran's flexion, although slightly limited, did not meet the criteria for a separate compensable rating.  

A private MRI study, dated in August 2004, revealed normal findings.  

On VA joints examination in July 2005 the Veteran was evaluated for his medial and lateral meniscus tear of the left knee.  The examiner noted that the claims file was unavailable for review.  The examiner observed a history of injury to the left knee in 1989 while the Veteran was playing softball, stepped into a hole, and twisted his left knee.  At that time the Veteran was taken to the hospital and underwent surgical repair of the left knee meniscus tear, which was followed-up with physical therapy.  After the initial surgery in 1989, the knee had constant popping and clicking, and the Veteran underwent two more surgical procedures in 1990 and 1991.  The Veteran reported that his left knee disability had gotten progressively worse, and that he had been prescribed "Egic" and "Piroxicam" for his left knee pain.  

The examiner noted the Veteran had undergone left knee arthroscopy surgeries in 1989, 1990 and 1991.  There was no history of neoplasm, no need for assistive aids for walking, no constitutional symptoms of arthritis, and no incapacitating episodes of arthritis.  However, there were functional limitations on standing and walking, and the Veteran was only able to stand for up to one hour and walk more than a quarter of a mile but less than 1 mile.  Review of joint symptoms revealed the Veteran denied symptoms of any deformity, giving way, instability, episodes of dislocation or subluxation, locking episodes, flare-ups of joint disease, and inflammation.  He reported symptoms of stiffness, weakness, and pain in the left knee.  

On physical examination, the Veteran was observed to walk with a limp, but there was no abnormal weight bearing on the left side.  Range of motion testing revealed extension was 0 degrees, without pain and with additional limitation on repetitive use.  Flexion was  to 80 degrees, with pain beginning and ending at 91 degrees, but there was no additional limitation of motion on repetitive use.  There was no loss of a bone or part of a bone noted, there was no inflammatory arthritis, and there was no joint ankylosis observed.  

On summary of general joint conditions, the examiner noted the Veteran had tenderness, painful movement and weakness in the left knee, without Osgood-Schlatter's Disease, crepitation, mass behind the knee, clicks or snaps, grinding, instability, patellar abnormality, meniscus surgically absent, effusion, dislocation, locking or tendon or bursa.  There was, however, meniscus abnormality requiring 3 surgeries to repair.  McMurray's test was negative.  The examiner noted that there was no prosthesis in use.  

An accompanying X-ray study, dated in July 2005, reveals findings of normal left knee.  Joint spaces were observed to be within normal limits and bony structures were unremarkable.  An MRI scan of the left knee, dated in August 2004, also revealed a normal study.  The Veteran was diagnosed with medial and lateral meniscus tear of the left knee.  

The examiner noted that the Veteran's disability had significant effects on the Veteran's occupational activities.  Specifically, the disability caused mobility problems, problems with lifting and carrying, decreased strength, and lower extremity pain, which resulted in increased absenteeism.  However, the examiner noted that the disability caused no effect on the Veteran's ability to dress, bathe, feed, toilet or groom; mild effect on the ability to travel; moderate effect on the ability to perform chores and shop; and prevented the ability to exercise, play sports and recreate.  

In July 2005, the Veteran's daughter, his spouse, his coworker, his friend and a former fellow-service member submitted statements that included observations of the Veteran's left knee symptomatology.  His daughter reported that her father could barely walk, and that his knee caused radiating pain into his back and hip, which limited his ability to engage in a number of hobbies such as playing horseshoes, camping and bowling.  She reported that she witnessed moments where his knee audibly popped and he collapsed to the floor in pain, and recalled an occasion where his left knee gave out and he nearly fell on to her.  She indicated that her father had great difficulty ascending and descending stairs, and required the use of a cane at all times.  She noted that he required pain medication just to sleep at night, and could not drive and barely moved due to his left knee disability.  The Veteran's coworker reported observations that the Veteran's left knee had gotten progressively worse, and that he could previously hobble around and rely on a cane for support, but now required the use of his cane all the time.  The coworker noted that the Veteran stumbled often and fell down when his knee buckled.  The coworker noted that the Veteran was in constant pain due to his left knee disability.  The Veteran's friend reported observations that the Veteran's left knee symptoms included pain and instability, and that he sometimes fell due to his left knee.  The former fellow-service member wrote to confirm that the Veteran was in constant pain when he was active due to his knee problem.  The Veteran's spouse recounted the history of his sports-related left knee injury in service, and described the decline in the functionality of his left knee since that time.  She indicated that the Veteran was generally unable to walk, and required the use of anti-inflammatory drugs and pain medications on a daily basis to function.  

In a statement accompanying the Veteran's VA Form 9, Appeal to Board of Veterans' Appeals, received in December 2006, the Veteran argued that he experienced functional loss; less movement than normal; pain on movement; swelling; and interference with sitting, standing and anything weight bearing in his left knee.  

VA treatment records, dated from July 2004 to June 2007, generally show findings of normal MRI study; an X-ray study within normal limits; left knee pain; walking requiring an ambulatory aid; no history of falls until 2006; one history of a fall in 2006, and none after; a history of 4 left knee arthroscopies; an MRI study in December 2006 revealing an impression of a tear in the posterior horn of the medial meniscus, a small knee joint effusion, and a 4 millimeter sized possible cyst in the proximal fibula; giving way and locking, antalgic gait, severe pain and decreased range of motion reported in March 2007; and a diagnosed left knee meniscal tear.  In September 2007, the Veteran underwent another MRI study, which revealed a complex tear involving the posterior horn of the medial meniscus, myxoid degenerative changes along the posterior horn of the lateral meniscus, small suprapatellar joint effusion, and Grade I chondromalacia involving the lateral patellar facet.  

The Veteran underwent private treatment for his left knee at the "Arkansas Specialty Care Centers, P.A.," at the "Texarkana MRI Center," at "Christus St. Michael Health System," at "Northeast Texas Surgical Center," at the "Orthopedic Specialists of Texarkana," and by "Dr. John R. Gregory," from 2005 to 2007.  

In November 2005, the Veteran underwent an MRI scan of the left knee at the Texarkana MRI Center.  The impression given was of 2 ganglion cysts, one in the medial compartment and one posterior to the posterior cruciate ligament; chronic scarring of the anterior cruciate ligament, and menisci within normal limits.  The study was limited for evaluation of the patellofemoral cartilage secondary to motion artifact.  

In November 2005, "Dr. Ethan Schock" of "Arkansas Specialty Care Centers, P.A. noted that the Veteran had undergone three knee arthroscopies in the past, with the most recent taking place in 1992, and that the Veteran recalled the removal of "cartilage" at the time of the surgery.  The Veteran reported a great deal of pain at that time and appeared to be unresponsive to appropriate conservative management, including physical therapy and injections like steroids and "Synvisc."  X-ray study revealed findings of some mild degenerative changes throughout the knee, but no gross malalignment, no evidence of fractures, new or old, and the patella appeared to be well-aligned.  On physical examination, the Veteran exhibited obvious painful movement, and he was very guarded and limited on active motion, although Dr. Schock observed that his left knee showed nearly full passive range of motion.  Dr. Schock indicated that the Veteran's cruciate and collateral ligaments were intact, his extensor mechanism was intact, there was no effusion on examination, leg and thigh compartments were soft and popliteal space was nontender.  Dr. Schock noted there was some mild crepitus in the patellofemoral joint, but the Veteran only had increased pain with Lachman's, and it was difficult to differentiate from the pain noted on other portions of the examination.  Incisions were noted on examination that were consistent with previous knee arthroscopy.  Dr. Schock noted the recent MRI study, and reported that it was uncertain what was causing the Veteran's pain, which appeared to be quite diffuse and might not have been entirely originating from the knee.  Dr. Schock recommended that a diagnostic knee arthroscopy be performed.  

In December 2005, the Veteran underwent a left knee arthroscopy at the Northeast Texas Surgical Center.  The surgeon observed that the anterior cruciate ligament was intact; the medial and lateral menisci were intact; Grade II to III changes were noted on the medial femoral condyle, which were smoothed down with a high-speed shaver and contoured; significant medial plica was noted with a concomitant trochlea on the medial femoral condyle, which was also taken down with a shaver; and the remainder of the knee was inspected with no abnormalities found.  

The Veteran underwent physical therapy at the Orthopedic Specialists of Texarkana from December 2005 to January 2006.  During this treatment he was observed to have tenderness around the knee; pain; difficulty walking; and ranges of motion including from -30 degrees to 50 degrees, flexion to 110 degrees and full extension, and flexion to 125 degrees and full extension.  During these sessions the Veteran was able to perform lower extremity exercises, including riding a stationary bike, performing heel slides, hip abduction/adduction, straight leg raises, quad sets, long arc quads, hamstring curls, wall slides, ankle pumps and pop backs.  He also received ice and electrical stimulation at the end of each treatment session.  

The Veteran also underwent treatment by Dr. Gregory from 2004 to 2007.  In November 2005, he was treated for considerable difficulty with his left knee, and X-rays revealed some minimal arthritic changes.  On examination the Veteran had diffuse pain on almost any range of motion, but no effusion or instability were observed, and the Veteran was injected with "Marcaine/Kenalog."  When he returned to treatment a few days later, the Veteran indicated that he did not get any relief from his injection.  Dr. Gregory noted that the Veteran's MRI scan was not terribly revealing, and the Veteran was referred to Arkansas Specialty Orthopedics for a second opinion.  In January 2006 the Veteran underwent an arthroscopy meniscectomy and chondroplasty, with good results.  However, in January 2007 he began to complain of left knee difficulty once again.  He was observed to have a slight effusion and so was injected.  Dr. Gregory reported that in January 2007 the Veteran underwent 2 views of the left knee, which revealed minimal osteoarthritic changes and no acute changes.  

VA treatment records, dated in 2007, indicate the Veteran underwent physical therapy to treat his difficulty with walking.  

An SSA Physical Residual Functional Capacity Assessment, dated in August 2007, shows the Veteran occasionally had postural limitations, including climbing, balancing, stooping, kneeling, crouching and crawling.  It was noted that the Veteran had degenerative joint disease of the left knee with a history of 4 arthroscopic surgeries.  

In September 2007 the Veteran underwent a second VA joints examination.  The examiner noted that no private treatment records were available, and the claims file was not requested to be reviewed nor was it available to be reviewed.  The Veteran reported a post-service employment history of working as a correctional officer to include from 1996 to 2007.  He indicated that he filed a claim for SSA benefits related to his left knee disability, and that he had to quit his job because of his left knee disability.  He reported that his left knee incapacitated him approximately once a week, and that his activities of daily living were severely impacted by the left knee disability.  The Veteran provided a history of multiple arthroscopic surgeries to repair the cartilage tear in his left knee, including in December 2005, which gave him some relief, and denied undergoing any injection in the left knee.  He described symptoms of constant pain, swelling, instability, giving way, weakness and locking of the knee.  He also reported experiencing flare-ups, at which time he is totally incapacitated and must rest all day, which could occur once a week and last for one to two days at a time.  He indicated that he wore a variety of braces to provide stability and support to the left knee, which did not help at all.  He reported having been diagnosed with degenerative and not inflammatory arthritis, and that his walking was limited to about 100 yards on a good day.  

On physical examination, the examiner observed the Veteran had tenderness medially and superiorly to the left patella.  There was popping on squatting motion, which was limited, but there was no tenderness elsewhere and no effusion; however, the Veteran noted that many days his knee became very swollen depending upon how long he had to stand on his feet.  Active and passive range of motion testing revealed findings of extension to positive 18 degrees of flexion; passive extension to positive 18 degrees of flexion, with pain throughout the entire movement; active flexion from positive 18 degrees of flexion to 80 degrees with pain beginning at 70 degrees and ending at 80 degrees; and passive flexion from positive 18 degrees of flexion to 110 degrees with pain starting at 70 degrees and ending at 110 degrees; with repetition active flexion from positive 18 degrees at flexion to 88 degrees with pain throughout the entire movement, but especially from 70 degrees to 88 degrees.  The examiner observed that with three repetitions there was no additional loss of range of motion secondary to pain, weakness, lack of endurance or incoordination.  The lateral and medial collateral ligaments were found to be stable in neutral and 30 degrees of flexion of the left knee, and the anterior and posterior cruciate ligaments were stable in 30 degrees of flexion and 90 degrees of flexion.  McMurray's test revealed popping with pain on external rotation of the left knee, and the Veteran's gait was left antalgia.  It was noted that the Veteran used a cane, and was not wearing a knee brace.  Pain was noted by facial grimacing and guarding during movement of the left knee.  The Veteran was diagnosed with degenerative disease of the left knee.  

In a VA Form 9, Appeal to Board of Veterans' Appeals, received in November 2007, the Veteran argued that he could not walk 100 yards, and was limited to walking less than 50 yards due to his left knee disability.  He also denied being able to perform squatting whatsoever, and reported experiencing constant popping, swelling and pain in his left knee, which required multiple arthroscopic surgeries to repair tears in the meniscus.  He argued that his left knee disability caused him to be unemployable.  

Workers' Compensation records, dated in January 2008 and July 2008, show findings of 4 left knee scopes and the need for another surgery; normal ranges of motion of the knees; no varus or valgus angulation; no generalized or localized swelling; no medical or lateral joint line tenderness; no point tenderness; no evidence of Backer's cyst; no varus or valgus stress instability; no patella femoral crepitation noted; normal tracking without dislocation or subluxation of the patella; no signs of inflammation; anterior and posterior drawer signs, McMurray's test and Lachman's test all negative bilaterally; no ligamentous instability; no scars present; antalgic gait pattern; symmetric reflexes at the knees; and no frank motor deficits.  

During his hearing testimony in February 2008, the Veteran reported that on VA examination in August 2007 his range of motion was "between 20 and 30, and 40 degrees, about 35."   He noted that he used a cane to walk and occasionally wore a brace on his left knee.  He also noted that he had undergone three operations on his left knee, and he believed that his range of motion in his left knee was "somewhere between 30 and 45 degrees."  The Veteran testified that he had a number of falls, including while walking through his house, due to his knee giving out, and reported that he was currently taking anti-inflammatory drugs and hydrocodone for his pain.  He indicated that his gait was impaired because of his left knee, as well as his activities of daily living, including recreational activities.  He noted that his knee buckled when he walked, popped constantly, swelled constantly, and was chronically painful.  He reported that he was no longer employed, and had stopped working in August 2007 due to his left knee disability and had lost jobs in the past due to his left knee disability.  

In March 2008, the Veteran underwent an MRI scan, which revealed a complex tear of the posterior horn of the medial meniscus.  On physical examination, the Veteran was observed to have exquisite tenderness in the posteromedial corner with palpation.  He also had marked tenderness in the peripatellar region; however, he was stable to varus and valgus, as well as anterior and posterior stress.  

In order for the Veteran's left knee disability to warrant an evaluation in excess of 30 percent, the record would have to show findings of ankylosis of the knee in flexion between 10 degrees and 20 degrees; or, of extension of the leg limited to 30 degrees; or, of nonunion of the tibia and fibula, with loose motion, requiring a brace; or, as noted, a separate, compensable rating may be assigned under each of these three Diagnostic Codes (5257, 5260, and 5261), if the specific symptoms are shown.  See VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04.  Again, the record from this period of the appeal shows no indication of any recurrent subluxation or lateral instability of the left knee; or of ankylosis of the knee in flexion between 10 degrees and 20 degrees; or, of extension of the leg limited to 30 degrees; or, of nonunion of the tibia and fibula, with loose motion, requiring a brace.  In fact, the clinical record clearly shows that the Veteran's left knee disability was not manifested by any recurrent subluxation or lateral instability.  He was repeatedly shown to be stable to varus valgus, as well as anterior and posterior stress tests, his McMurray's and Lachman's tests were all negative, and no ligamentous instability was observed at any point during this period of the appeal.  Moreover, extension of the leg was never shown to be more than 20 degrees, and no ankylosis was observed.  In light of such evidence, a higher evaluation is not assignable under DCs 5256, 5257, 5261 and/or 5262.  38 C.F.R. § 4.71a.  

The Board notes the Veteran, his friends, his coworkers, and his family have submitted statements attesting to his subjective complaints of intermittent swelling, pain, giving way and instability.  The Veteran is competent to report the nature and extent of his left knee symptoms, and his friends, coworkers and family are competent to report their observations of physical manifestations of his left knee symptomatology, to include describing his overall functional loss.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, on this record, the lay assertions alone are not sufficient to establish the presence of joint instability or recurrent subluxation, ankylosis, extension limited to 30 degrees.  

Instead, the Board relies upon the findings of the VA and private practitioners, and VA examiners, to provide a more detailed and objective disability picture of the Veteran's left knee disability, as their results were based on objective diagnostic tests, including X-ray studies and MRI scans.  As a general matter, a medical examiner is not required to comment on every favorable piece of evidence in a claims file.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).  Any deficiency in the VA examiner's factual foundation or explanation is consequently immaterial.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale); Acevedo v. Shinseki, 25 Vet. App. 286, 293-942012); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Such medical opinions, which are factually accurate, fully articulated, and based on sound reasoning, carry significant weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.  The Board, in its own lay capacity (as with the Veteran), is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so.  See, e.g., Monzingo, 26 Vet. App. 97, 106 (2012).  

It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches).  In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character).  It has also been observed 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."  Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997).  

In consideration of the evidence of record, the Board finds that the clinical record and VA examination reports to be the most persuasive and probative evidence concerning the claim.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  

The Board has considered whether additional "staged" ratings are appropriate for the left knee disability.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The record does not support assigning different percentage ratings for the service-connected left knee disability during this period of the appeal.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the medical evidence does not support an evaluation in excess of 30 percent for the service-connected left knee disability, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  


Evaluating the left knee from March 26, 2008 to September 20, 2011

The August 2010 rating determination, which granted an increased evaluation to 40 percent for the left knee disability, effective March 26, 2008, was based on a finding that extension was limited to 30 degrees.  

A private treatment record from Dr. Gregory, dated on March 26, 2008, indicates the Veteran was observed to have continued difficulty with his left knee, which had required several surgeries to repair.  Dr. Gregory noted that a scope was recommended by VA.  A standing anterior posterior X-ray revealed osteoarthritic changes as compared to the opposite knee, and active range of motion was from -30 degrees to 90 degrees.  The Veteran was unable to perform any passive stretching due to pain.  

In June 2008, the Veteran underwent another scope of the left knee by VA.  He subsequently attended physical therapy at VA, and the physical therapist noted that strength and range of motion for the bilateral lower extremities were within full limit.  The Veteran demonstrated safe gait pattern, ascended and descended five steps, and was issued crutches.  

As noted, a June 2008 Workers' Compensation record indicates observations of small punctuate scars on the left knee which presumably represented the arthroscopic sites for previous surgery.  

A July 2008 VA addendum reveals the Veteran was status-post left knee scope, which took place in June, and that he reported one of the incision sites at the top of his knee had never healed.  The Veteran reported that there was still a scab there and there was "pus coming out of it."  He described a small amount of exudate draining out, and complained of a very sore knee.  He indicated that he had a silver dollar sized deep red area around the top incision, and sometimes his knee was hot to the touch and red around the knee cap.  The Veteran was assessed with an impression of a probable superficial skin infection.  It was noted that since he was "this far post op" that all should have been healed.  

In January 2009 the Veteran underwent a VA joints examination, during which he complained of chronic left knee pain, for which he took hydrocodone daily.  He reported that flare-ups came about with any prolonged ambulatory activities, and the knee occasionally locked and swelled, and he had weakness of the left knee during such flare-ups.  The Veteran indicated that the extension of his left knee was limited to 45 degrees and flexion was limited to 80 degrees during flare-ups.  He reported that he was previously employed as an air conditioner technician, but was unemployed and was on Workers' Compensation disability at the time for a back-related injury.  Functionally, the Veteran indicated that he was limited to standing and walking for five minutes, that he could walk approximately one block, he could not climb or squat, and could sit for only 20 minutes before he had to move around due to left knee pain.  He also was limited to driving for about 30 minutes, but was able to perform most activities of daily living.  The examiner noted the Veteran required the use of a cane to ambulate with on a daily basis, and wore a knee brace intermittently.  He reported being incapacitated for one week following his last left knee surgery.  

On physical examination, the Veteran presented with a marked limp using a cane.  The examiner observed moderate effusion surrounding the left knee, though no synovitis was noted.  The left knee did not reveal any significant tenderness, ligaments were tight to stress testing in all directions including anterior, posterior and mediolateral, without evidence of ligament laxity with the left knee.  McMurray testing was noted as positive along the medial and lateral joint lines with testing.  Range of motion testing of the left knee revealed extension to 30 degrees with pain at 45 degrees onset; and flexion to 85 degrees with pain at 80 degrees onset.  The examiner observed that the patella tracked normal in the left knee without appreciable laxity on examination.  No lateral instability or subluxation was appreciated, but the examiner noted that this would be expected in the Veteran as he was unable to fully extend the left knee, thereby rendering the patella in a position where instability or subluxation would not be expected.  The examiner indicated that following repetitive stress testing against resistance times three with the left knee, there was mild weakness detected on examination; however, no additional fatigability, restricted range of motion, discoordination or incoordination with stress testing against resistance times three was appreciated.  

The examiner noted the diagnostic impression was left knee injury, post-operative arthroscopic medial meniscectomy with degenerative joint disease.  An accompanying X-ray study revealed an impression of slight narrowing of the medial joint space raise the possibility of medial meniscus tear or degeneration.  An accompanying MRI study revealed an impression of complex tear involving the posterior horn of the medial meniscus; myxoid degenerative changes along the posterior horn lateral meniscus; small suprapatellar joint effusion; and Grade I chondromalacia involving the lateral patellar facet.  

A March 2009 "Notice of Decision" from SSA reveals the Veteran was granted SSA disability benefits after finding that the Veteran was last employed in August 2007, and had stopped working due to his "degenerative joint disease of the left knee; degenerative disc disease of the cervical and lumbar spine with disc protrusion; and post-surgery pain."  An SSA "Disability Determination and Transmittal," also dated in March 2009, indicates the Veteran's primary diagnosis was degenerative joint disease of the left knee, and his secondary diagnosis was degenerative disc disease of the lumbar and cervical spine.  

A May 2009 VA treatment record indicates the Veteran was observed to have functional range of motion and strength in his left leg, and was able to independently for 50 feet.  

In October 2009, a VA physician determined that, although the Veteran continued to have problems with his left knee degenerative joint disease pain, it was determined that he was not felt to be a candidate for joint arthroplasty at the time, and he was not interested in undergoing a joint fusion.  

A VA orthopedic surgery consult report, dated in February 2010, shows the Veteran, on physical examination, had a 15 degree flexion contracture and further flexion to approximately 90 degrees.  He was also observed to have slight effusion, generalized tenderness around the knee, and almost a hypersensitivity to the knee.  He was diagnosed with "knee arthralgia left knee."  

A VA joints examination report, dated in May 2010, reflects a reported history of left knee degenerative joint disease with a history of 5 left knee arthroscopic surgeries.  The Veteran complained of popping, giving way, and locking up of the left knee, which has required the use of assistive devices including canes and braces.  He reported an employment history of working as a heating and air conditioning technician for Sears and as a service technician for a commercial refrigeration and restaurant business.  He denied any restriction by his left knee condition, and noted that he was able to perform his job-related duties without any problems from his left knee.  He also reported that he was independent in his activities of daily living.  He described flare-ups of pain, but denied the need for any viscus supplementation or cortisone injections since his last surgical intervention in 2008.  

On physical examination, the examiner observed the Veteran had an antalgic gait and walked with a cane.  His posture was erect, but he limped favoring the left leg.  The examiner noted the knee was cold to the touch, there was no warmth, erythema, or effusion; however, there was moderate crepitus.  No scarring was appreciated, and the examiner had to search very closely to see minimal residuals of arthroscopic portals, which had no created any scarring.  No keloid formation, elevations, or depressions were observed; however, the Veteran had minimal, mild, partial favorable ankylosis of the left knee, as it was permanently flexed at 30 degrees and would not completely extend to 0 degrees.  The examiner noted that the Veteran, therefore, lacked full extension by plus 30 degrees.  The examiner observed that the left knee appeared to be stable; however, it was negative for McMurry testing, negative for Lachman testing, and negative for anterior and posterior drawer signs.  Active/forward passive range of motion included flexion to plus 30 degrees and extension to 95 degrees, but the Veteran lacked full extension of the knee by 30 degrees.  For repetitious activity times three of extension and flexion, the Veteran's range of motion was plus 30 degrees extension to 85 degrees, with a loss of motion on repetitious activity by 10 degrees.  The examiner noted the Veteran appeared to be primarily limited by pain as he exhibited facial grimacing and repeatedly had heavy breathing with activity.  The examiner noted that his second additional limiting factor was fatigability.  The Veteran did not exhibit any weakness, incoordination, or repetitious activity of the left knee.  X-ray findings, dated in January 2010, included an impression of mild degenerative joint disease of the left knee.  An MRI study of the left knee, dated in May 2010, revealed an impression of no significant interval change from prior MRI, there was minor truncation probably related to meniscectomy of the medial posterior horn, and minimal local osteochondritis lesion was also noted.  The Veteran was diagnosed with postoperative left knee arthroscopic surgery times five, the most recent in 2008 involving a left knee meniscectomy of the medial posterior horn.  

The examiner noted that by the Veteran's account his orthopedic surgeon had told him that after his 2008 left knee arthroscopic surgery, his left knee was fine and had plenty of cushion.  The examiner noted that there was no evidence of lateral instability or subluxation, but by examination the Veteran continued to have limitation in range of motion for active/passive range of motion.  The examiner indicated that the Veteran lost 10 degrees of motion with repetitious activity of the left knee.  The examiner observed that there was no limitation of activity imposed by the Veteran's service-connected left knee disability.  The examiner indicated that when the Veteran was able to work, he did not have any restriction of his activities due to his left knee.  The examiner noted that the Veteran's retirement on SSA disability benefits in 2007 was not related to his left knee disability, but was in fact due to the motor vehicle accident in 2007, during which the Veteran injured his back and required back surgery.  The examiner opined that the Veteran continued to be able to perform ordinary activities of daily living despite his left knee disability, and indicated that the Veteran did not exhibit any weakness, excess fatigability, or incoordination due to his left knee disability.  The examiner indicated that the Veteran's primary limiting factor for his left knee on repetition was pain with limited range of motion.  

A VA rheumatology consult report, dated in September 2010, indicates findings of an inability to fully extend the left knee due to pain with crepitus.  It was observed that a recent X-ray study of the left knee was unremarkable.  During the evaluation, the Veteran reported that he quit his job as a mechanic due to a back injury and knee pain.  A September 2010 VA physical therapy consult report shows observations that the Veteran was able to walk 100 feet with appropriate technique and safety, and was able to ascend/descend 4 steps safely and without difficulty.  At this time, he was also fitted for a left medial unloading knee brace, which was to be worn every day.  

VA treatment records, dated from April 2011 to August 2011, show ongoing treatment for left knee pain.  Notably, in April 2011, the Veteran was treated for injuries sustained during a fall, after his left knee purportedly buckled.  A VA MRI study of the left knee, dated in August 2011, indicates an impression of fibrosis versus possible new tear involving the posterior horn of the medial meniscus, and cartilaginous changes involving the femoral condyles.  Trace amounts of prepatellar edema were noted, but no Baker's cyst was identified.  

In order for the Veteran's left knee disability to warrant an evaluation in excess of 40 percent, the record would have to show findings of ankylosis in flexion between 20 degrees and 45 degrees; or, of extension of the leg limited to 45 degrees; or, as noted, a separate, compensable rating may be assigned under each of these three Diagnostic Codes (5257, 5260, and 5261), if the specific symptoms are shown.  See VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04.  Again, the record from this period of the appeal shows no indication of slight recurrent subluxation or lateral instability of the left knee; or of ankylosis in flexion between 20 degrees and 45 degrees; or of extension of the leg limited to 45 degrees.  In fact, the January 2009 VA examiner noted that no lateral instability or subluxation was appreciated during the examination, and noted that this would be expected in the Veteran as he was unable to fully extend the left knee, thereby rendering the patella in a position where instability or subluxation would not be expected.  The clinical record reflects findings that the Veteran was stable to anterior and posterior stress tests, and his McMurray's and Lachman's tests were negative during this period of the appeal.  Moreover, extension of the leg was never shown to be more than 30 degrees, and no more than favorable ankylosis was observed.  In light of such evidence, a higher evaluation is not assignable under DCs 5256, 5257 and/or 5261.  38 C.F.R. § 4.71a.  

The Board notes the Veteran has submitted statements attesting to his subjective complaints of intermittent swelling, pain, giving way and instability.  As noted, the Veteran is competent to report the nature and extent of his left knee symptoms, to include describing his overall functional loss.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, on this record, the lay assertions alone are not sufficient to establish the presence of joint instability or recurrent subluxation, ankylosis in flexion between 10 degrees and 20 degrees, or extension limited to 45 degrees.  

Instead, the Board relies upon the findings of the VA practitioners and VA examiners, to provide a more detailed and objective disability picture of the Veteran's left knee disability, as their results were based on objective diagnostic tests, including X-ray studies and MRI scans.  As a general matter, a medical examiner is not required to comment on every favorable piece of evidence in a claims file.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012).  Any deficiency in the VA examiner's factual foundation or explanation is consequently immaterial.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale); Acevedo v. Shinseki, 25 Vet. App. 286, 293-942012); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  Such medical opinions, which are factually accurate, fully articulated, and based on sound reasoning, carry significant weight.  See Nieves-Rodriguez, 22 Vet. App. at 304.  The Board, in its own lay capacity (as with the Veteran), is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so.  See, e.g., Monzingo, 26 Vet. App. 97, 106 (2012).  

As noted, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993).  Also, 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."  Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997).  

In consideration of the evidence of record, the Board finds that the clinical record and VA examination reports to be the most persuasive and probative evidence concerning the claim.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  

The Board has considered whether additional "staged" ratings are appropriate for the left knee disability.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The record does not support assigning different percentage ratings for the service-connected left knee disability during this period of the appeal.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the medical evidence does not support an evaluation in excess of 40 percent for the service-connected left knee disability, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  

Evaluating the left knee since September 20, 2011

As noted, in September 2011, the Veteran underwent a VA examination to evaluate the severity of his left knee disability.  Here, he was diagnosed with post-operative medial meniscus tear of the left knee.  It was noted that the Veteran had undergone 5 surgeries since the original injury, spanning from 1989 to 2008, and that his last surgery, performed in 2008, was to repair a torn meniscus.  The Veteran reported continued pain in the left knee necessitating bracing and use of a cane for ambulation.  It was also noted that the Veteran had not been able to work since 2007, and received SSA benefits due to degenerative joint disease of the left knee, and due to a cervical and lumbar spine disability.  

The Veteran reported symptoms of flare-ups in the left knee in the form of a dull, aching pain with a lot of popping, especially with movement and changing of positions.  The frequency of pain was described as daily, and the duration of pain lasted for hours.  Range of motion testing with a goniometer for the left knee included flexion ending at 95 degrees, with objective evidence of painful motion beginning at 40 degrees; and extension ending at 35 degrees.  The examiner observed that the left knee range of motion was limited due to chronic pain despite post-operative intervention and a medial meniscus tear in the left knee.  The examiner reported that the Veteran lacked full extension of the left knee by 35 degrees, and that throughout the range of motion and with weight bearing, the Veteran had facial grimacing and appeared to be in pain due to his knee.  The Veteran was able to perform repetitive-use testing with three repetitions.  He was observed to have additional limitation in range of motion of the knee and lower leg following repetitive-use testing, and experienced functional loss and/or impairment or additional of the knee and lower leg.  Specifically, the examiner noted that there was pain on movement and interference with sitting, standing and weight-bearing in the left knee.  Also, there was tenderness or pain to palpation for joint line or soft tissues of the knee.  Muscle strength testing revealed findings of active movement against some resistance in the left knee.  Joint stability testing and posterior instability (posterior drawer test) were normal; however medial-lateral instability testing could not be performed.  The examiner noted there was no evidence or history of recurrent patellar subluxation/dislocation, and there were no other additional conditions such as "shin splints," stress fractures, chronic external compartment syndrome or any other tibial and/or fibular impairment in the left knee.  

The examiner noted that the Veteran had a history of a meniscus condition, including meniscal tear and frequent episodes of joint pain; however, the Veteran had not undergone a meniscectomy or total knee joint replacement.  The examiner indicated that the Veteran underwent left knee arthroscopies in 1989, 1990, 1991, 2005 and 2008.  The examiner commented that the Veteran experienced persistent pain in the left knee, lacked full extension by plus 35 degrees, and an MRI of the left knee revealed post-surgical changes at the posterior horn of the medial meniscus with either blunting or a new tear.  The examiner observed that the Veteran did not have any scars (surgical or otherwise) related to his left knee disability; however, he did have moderate crepitance of the left knee without warmth, erythema; effusion; or bony deformity.  The examiner indicated that the prior arthroscopic portals were barely visible, well-healed, and had not resulted in any significant scarring.  The Veteran's gait was described as slow, stiff, antalgic, with a limp favoring the left lower extremity.  It was also noted that he walked with a brace, cane and crutches on a constant basis.  The Veteran's spouse reported that the Veteran frequently stumbled at least once a month due to his left knee.  

Diagnostic testing results revealed the Veteran had documented degenerative or traumatic arthritis in his left knee, but there was no X-ray evidence of patellar subluxation.  Mild degenerative joint disease of the left knee, without significant changes since January 2010, was noted.  An MRI scan of the left knee, dated in August 2011, showed an impression of fibrosis versus possible new tear involving the posterior horn of the medial meniscus, and cartilaginous changes.  

The examiner noted that the Veteran's knee impacted his ability to work.  Specifically, the examiner observed that the Veteran had a Workers' Compensation injury in 2007 when he had a motor vehicle accident at work, which resulted in an injury to the lower back necessitating surgical intervention.  The examiner indicated that the Veteran had to stop working as a heating and air conditioning service technician, and began to receive benefits from SSA related to his left knee and spine disabilities.  The examiner concluded that the 2011 MRI study findings most likely represented the chronic post-operative changes and old posterior horn medial meniscus tear from the surgery in 2008.  The examiner observed that the doctor's progress notes preoperatively documented that it was not felt the Veteran's condition and complaint of pain would not get any better post the 2008 arthroscopic surgery.  

The December 2013 rating determination, which granted an increased evaluation to 50 percent for the left knee disability, effective September 20, 2011, was based on a finding that extension was limited to 45 degrees or more, which approximated the 50 percent rating under Diagnostic Code 5261.  

In order for the Veteran's left knee disability to warrant an evaluation in excess of 50 percent, the record would have to show findings of extremely unfavorable ankylosis of the knee at an angle of 45 degrees or more; or, as noted, a separate, compensable rating may be assigned under each of these three Diagnostic Codes (5257, 5260, and 5261), if the specific symptoms are shown.  See VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04.  Again, the record from this period of the appeal shows no indication of any recurrent subluxation or lateral instability of the left knee; or of extremely unfavorable ankylosis of the knee at an angle of 45 degrees or more.  In fact, the September 2011 VA examiner observed joint stability testing and posterior instability (posterior drawer test) were normal, there was no evidence or history of recurrent patellar subluxation/dislocation, and there were no other additional conditions such as "shin splints," stress fractures, chronic external compartment syndrome or any other tibial and/or fibular impairment in the left knee.  In light of such evidence, a higher evaluation is not assignable under DCs 5256 and/or 5257.  38 C.F.R. § 4.71a.  

In consideration of the evidence of record, the Board finds that the September 2011 VA examination report to be the most persuasive and probative evidence concerning the claim.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  

The Board has considered whether additional "staged" ratings are appropriate for the left knee disability.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The record does not support assigning different percentage ratings for the service-connected left knee disability during this period of the appeal.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the medical evidence does not support an evaluation in excess of 50 percent for the service-connected left knee disability, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.  

Additional Considerations

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.  38 C.F.R. §  4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  

To afford justice in exceptional situations, however, an extraschedular rating may also be assignable.  38 C.F.R. § 3.321(b).  The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  This determination follows a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule.  Therefore, the assigned schedular evaluation is adequate and no referral is required.  Id.  If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-16.

The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability.  The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability.  Johnson v. Shinseki, --- Vet. App. ----, 2013 WL 1224810, Vet. App., March 27, 2013 (NO. 10-1785).  Extraschedular consideration is undertaken on the basis of each individual service-connected disability.  Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis.  Id.  

If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. 111.  

Here, the rating criteria reasonably describe the Veteran's left knee disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  It is noted that the symptoms listed in the rating criteria are demonstrative and not exhaustive; thus, the rating criteria actually consider many other orthopedic symptoms.  See Mauerhan, 16 Vet. App. 436; see also 38 C.F.R. § 4.130.  Overall, the occupational and social impairment caused by the Veteran's left knee disabilities and associated residuals, as described above, are accounted for by the rating criteria.  Thus, the assigned schedular evaluation is adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.  


ORDER

An evaluation in excess of 30 percent for the service-connected left knee disability, prior to March 26, 2008, is denied.  

An evaluation in excess of 40 percent for the left knee disability, from March 26, 2008 to September 20, 2011, is denied.  

An evaluation in excess of 50 percent for the left knee disability, since September 20, 2011, is denied.  


REMAND

During his February 2008 hearing, the Veteran testified that he intended to file a claim for TDIU related to his left knee disability.  In the August 2011 Board remand, the Board referred the matter of entitlement to a TDIU to the RO for appropriate action.  Although the most recent rating decision shows that at some point in time entitlement for TDIU was denied, no rating determination could be located in the claims file that addressed the TDIU claim.  

As noted, an SSA "Disability Determination and Transmittal," also dated in March 2009, indicates the Veteran's primary diagnosis was degenerative joint disease of the left knee, and his secondary diagnosis was degenerative disc disease of the lumbar and cervical spine.  

The record clearly shows the Veteran is unemployed and has been so since at least 2007.  Notably, Workers' Compensation records, dated in January 2008, June 2008, October 2008 and December 2008, reveal that in August 2007 the Veteran was involved in a motor vehicle accident while working for "Sears Home Service" as a home appliance technician.  It was noted that the Veteran had not worked since that time, and reported that the highest level of education he achieved was high school and "some college."  Eventually, the Veteran was released to do some light sedentary office work if available.  The VA examination reports indicate that the Veteran was previously employed as a repairman.  The July 2005 VA examiner noted that the Veteran's disability had significant effects on the Veteran's occupational activities, including causing mobility problems, problems with lifting and carrying, decreased strength, and lower extremity pain, which resulted in increased absenteeism.  The September 2011 VA examiner opined that the Veteran's knee impacted his ability to work.  Specifically, the examiner indicated that the Veteran had to stop working as a heating and air conditioning service technician, and began to receive benefits from SSA related to his left knee and spine disabilities.  As such, a claim for entitlement to a TDIU had been raised by the record and is considered "part and parcel" of the claims for benefits for the underlying disabilities.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In such cases, a request for a TDIU is not a separate "claim" for benefits but, rather, is an attempt to obtain an appropriate disability rating, either as part of the initial adjudication of a claim or as part of a claim for increased compensation.  Id.  

In TDIU claims, the Court has held that the duty to assist requires that VA obtain an examination, which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2012); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012).  The Board finds that although the September 2011 VA examiner opined that the Veteran's knee impacted his ability to work, the examiner failed to address, without regard to age or the impact of any nonservice-connected disabilities, whether the Veteran's service-connected disabilities, either separately or in combination, precluded him from securing and following a substantially gainful occupation consistent with his education and occupational experience.  When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Thus, the Board finds that a new VA examination and medical opinion is necessary to evaluate the severity of the Veteran's service-connected disabilities to include their impact on his ability to work.  

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC must schedule the Veteran for a general medical examination to ascertain the impact of all of his service-connected disabilities on his unemployability.  

A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in Virtual VA.  The examiner is asked to confirm whether paper and/or electronic records were available for review.  

The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on the Veteran's employability.  The examiner should opine as to whether it is as likely as not (i.e., a 50 percent or more probability) that the Veteran's service-connected disabilities, without consideration of his nonservice-connected disabilities or age, render him unable to secure or follow a substantially gainful occupation.  

A complete rationale for any opinion expressed should be provided.  If an opinion cannot be expressed without resort to speculation, discuss why such is the case.   

Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it.  

2. Thereafter, and after undertaking any additional development deemed necessary, the RO/AMC must adjudicate the claim of entitlement to a TDIU.  If the benefits sought are not granted, the RO/AMC must issue an SSOC and allow the Veteran an opportunity to respond.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).  




Department of Veterans Affairs