Citation Nr: 1322979 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-22 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased disability rating for a right knee disability, currently evaluated 10 percent disabling prior to December 28, 2009, as 30 percent disabling from March 1, 2011 to February 14, 2012, and as 60 percent disabling thereafter. 2. Entitlement to an increased disability rating for a cervical spine disability, currently evaluated 20 percent disabling. 3. Entitlement to an increased initial disability rating for right arm numbness and weakness, currently evaluated 20 percent disabling. 4. Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1975 to April 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of Regional Offices (RO) of the Department of Veterans Affairs (VA), which continued the rating of the Veteran's right knee disability at 10 percent disabling, continued the rating of the Veteran's cervical spine disability at 20 percent disabling, and granted service connection for right arm numbness and weakness with an initial 20 percent disability evaluation. In December 2011, the Board remanded the claims for additional development. In an October 2011 statement to the Board, the Veteran, through his representative, withdrew his request for a videoconference hearing on the increased and initial evaluation issues on appeal. 38 C.F.R. § 20.702(e) (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 28, 2009, the Veteran's service-connected right knee disability is shown to have been productive of complaints of pain and weakness, but not ankylosis, moderate recurrent subluxation or lateral instability, a malunion of the tibia and fibula, knee flexion limited to 30 degrees, or extension limited to 15 degrees. 2. For the period from March 1, 2011 to February 14, 2012, the Veteran's service-connected right total knee replacement is shown to have been productive of pain, swelling, and some limitation of motion, but not ankylosis, nonunion of the tibia and fibula, or right knee extension limited to 30 degrees. 3. As of February 15, 2012, the Veteran's service-connected right total knee replacement is shown to have been productive of pain, swelling, and some limitation of motion, but not impairment of the femur due to fracture of the shaft or anatomical neck of the femur, with resulting nonunion and loose motion. 4. As of February 15, 2012, the Veteran's service-connected right total knee replacement is shown to have been manifested by a tender post-surgical scar measuring 23 centimeters in length. 5. The Veteran's service-connected cervical disc disease is shown to have been productive of complaints of pain, and some limitation of motion, but not limitation of forward flexion to 15 degrees or less, ankylosis, or incapacitating episodes. 6. The Veteran's service-connected right arm numbness and weakness is shown to have been productive of complaints that include pain, weakness and numbness, but not moderate incomplete paralysis, neuritis, or neuralgia, of the radicular groups. CONCLUSIONS OF LAW 1. Prior to December 28, 2009, the schedular criteria for a rating in excess of 10 percent for service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, Diagnostic Codes 5003, 5256, 5257, 5258, 5260, 5261, 5262 (2012). 2. For the period from March 1, 2011 to February 14, 2012, the schedular criteria for a rating in excess of 30 percent for service-connected right total knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5256, 5261, 5262 (2012). 3. As of February 15, 2012, the schedular criteria for a rating in excess of 60 percent for service-connected right total knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.59, 4.71a, Diagnostic Code 5055 (2012). 4. As of February 15, 2012, the criteria for a separate 10 percent rating for a tender scar, right knee, postoperative, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). 5. The criteria for a rating in excess of 20 percent for Veteran's service-connected cervical disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 6. The criteria for an initial evaluation in excess of 20 percent for Veteran's service-connected right arm numbness and weakness have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, Diagnostic Codes 8512, 8612, 8712 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings/Initial Evaluation The Veteran asserts that he is entitled to an increased rating for his service-connected right total knee replacement, and his service-connected cervical disc disease, and an increased initial evaluation in excess of 20 percent for his service-connected right arm numbness and weakness. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § Part 4 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Solomon v. Brown, 6 Vet. App. 396, 402 (1994). More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the history of the disabilities in issue, the Veteran's service treatment reports show that in March 1990, he was hospitalized after he was involved in a motor vehicle accident (VA) while riding in a convoy, apparently in association with National Guard duty. He was noted to have a loss of consciousness, as well as contusions to areas that included the neck and right knee. The final diagnoses included acute sprain of the neck, and abrasion of the right knee. In June 1991, the Veteran underwent an arthrotomy, subtotal meniscectomy and arthroscopy, with a postoperative diagnosis of complex bucket-handle tear, right medial meniscus. A June 1995 VA examination report contained a diagnosis of history of herniated nucleus pulposus C5 and C6, symptomatic. An August 1995 VA X-ray report for the right knee noted minimal narrowing of the medial compartment due to degenerative osteoarthritis. In 1996, the Veteran underwent a second right knee surgery. An April 1998 VA X-ray report for the right knee was interpreted as normal. See 38 C.F.R. § 4.1 (2012). A. Right Knee In January 1994, the RO granted service connection for a right knee disability, evaluated as 10 percent disabling. In March 2005, the Veteran filed a claim for an increased rating. In July 2005, the RO denied the claim, and following the receipt of additional evidence, the RO again denied the claim in October 2006. The Veteran appealed. In June 2010, following a total right knee replacement, the RO assigned a 100 percent (temporary total) rating, effective December 28, 2009, and a rating of 30 percent as of February 1, 2011. In August 2012, the Appeals Management Center (AMC) extended the Veteran's temporary total (100 percent) rating to February 28, 2011, assigned a 30 percent rating as of March 1, 2011, and increased the Veteran's rating to 60 percent, with an effective date of February 15, 2012. Because these increases did not constitute full grants of the benefits sought, the increased rating issues remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As an initial matter, as the Veteran's claim was received on March 21, 2005, the appeal period is from March 21, 2004 (i.e., one year prior to the date of receipt of the claim) to the present. 38 C.F.R. § 3.400(o)(2) (2012). In addition, as a 100 percent rating is in effect from December 28, 2009 through February 28, 2011, the Veteran's increased rating claim is moot during this portion of the appeal period, and need not be discussed. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 1. Prior to December 28, 2009 Under DC 5260, a 10 percent evaluation is warranted where knee flexion is limited to 45 degrees. A 20 percent evaluation is warranted where knee flexion is limited to 30 degrees. The following diagnostic codes are also relevant to the claim: Under 38 C.F.R. § 4.71a, DC 5261, a 20 percent evaluation is warranted where knee extension is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is rated as 20 percent disabling. The only recorded ranges of motion during the time period in issue are as follows: a VA examination report, dated in October 2006, shows that the Veteran's right knee had extension to -5 degrees, and flexion to 70 degrees. A VA examination report, dated in April 2009, shows that the Veteran's right knee had extension to 0 degrees, and flexion to 80 degrees. VA progress notes show the following ranges of motion for the right knee: extension to 0 degrees, and flexion to 45 degrees (active), and 0 degrees, and flexion to 90 degrees (passive) (February 2008); extension to 0 degrees, and flexion to 90 degrees (March 2008), and extension to 10 degrees, and flexion to 85 degrees (June 2008). There was also a notation of a FROM (full range of motion) (August 2007) (specific degrees of motion were not provided). The Board finds that a rating in excess of 10 percent under DC 5260 is not warranted. There is no evidence to show that the Veteran's right knee flexion is limited to 30 degrees. The criteria for a 20 percent rating under DC 5260 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC 5260 have not been met. As for the possibility of a higher rating under another diagnostic code, Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), a rating in excess of 10 percent is not warranted under DC 5261, as the evidence does not show that during the time period in issue, the Veteran's right knee extension was limited to 15 degrees. There is no evidence of right knee ankylosis for a higher rating under DC 5256. To the contrary, an active range of motion of the right knee has been documented throughout the appeal period. Similarly, as there is no evidence of a dislocated right semilunar cartilage, a higher rating under DC 5258 is not applicable. In this regard, the RO has rated the Veteran under DC 5259 during this time period, and this diagnostic code indicates that the semilunar cartilage has been removed. With regard to DC's 5260 and 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, the Court has stated that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially "absurd results." Id. at 43 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). It was stated that 38 C.F.R. § 4.40 provides that joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant the minimum compensable rating. In this case, the October 2006 VA examination report shows that the Veteran refused to perform repetitive motion testing, claiming that his pain was too great. His right lower extremity strength was 4/5. Both calves were 30 centimeters in circumference. Although the Veteran arrived by wheelchair, he had no assistive device. He had no uneven shoe wear. X-rays were noted to show minimal degenerative changes at the medial compartment of the right knee. The relevant diagnosis was right meniscus injury with meniscectomy and removal of semilunar cartilage with residual pain and a slight valgus deformity of the right knee. An April 2009 VA examination report notes complaints of increased and constant right knee pain. He also report that his knee was "giving out," and that he used a knee brace and a cane. He denied using corrective shoes, a walker, or crutches. He denied having any prescribed bedrest, hospitalizations, or surgeries for his right knee since 1996. He claimed that he quit his job as a coal miner in 2003, because he was missing work due to right knee pain. He stated that he could walk about two blocks, and then had to sit down for about 15 minutes due to pain. He said that he could only stand in one place for about 10 minutes, and that he had driven to his appointment, which took about 11/2 hours. On examination, gait was unsteady and antalgic. He had a limp on the right side, and severe varus of the right knee. He required a cane to rise from his chair, and ambulate. Muscle strength was 2/5, and there was pain at 60 degrees of flexion. No instability was demonstrated. There was slight muscle wasting and atrophy. Repetitive motion increased pain and caused a further 10 degree decrease in the range of motion. An X-ray was noted to show severe loss of joint space in the medial compartment with bone-on-bone appearance, and tricompartmental osteophytes. VA hospital reports, dated in April 2006, note the following: the Veteran frequently walked outside his room at least twice per day and inside his room at least once every two hours. He moved independently in his bed and chair, and his lower extremities had equal strength. There was no history of fall within the last three months, no ambulatory aid was used, and gait was normal. He was not taking any pain medications. VA progress notes, overall, show a number of treatments for complaints of right knee pain, with treatment that included steroid injections, and medication. A September 2007 VA progress note indicates that the Veteran was using a large hinged knee brace, and that he was given hydrocodone for complaints of neck and knee pain. VA progress notes, dated in October 2007, indicate that the Veteran was using a cane. Strength was 5/5 throughout, and a sensory examination was intact. Reflexes were normal. A November 2007 MRI report contains impressions noting a history of medical meniscal injury in the 1990s still painful with instability, marked medial compartment narrowing with secondary degenerative changes, marked medial meniscus abnormalities, and a likelihood of at least a partial tear of the anterior cruciate, and patellar femoral degenerative changes. A December 2007 reports notes 5/5 strength throughout. A January 2008 VA progress note indicates 3/5 strength, grossly intact sensation, and use of a knee brace. A February 2008 VA progress note shows that the Veteran had 5/5 strength, with intact sensation; he was given a steroid injection. A February 2008 VA X-ray report contains an impression of advanced narrowing of the medial femoral compartment. A March 2008 VA progress note shows that the Veteran had 5/5 strength in his right lower extremity, with not-intact sensation below the right knee. He was provided with an unloader brace. A June 2008 VA X-ray report notes moderately advanced narrowing of the medial tibiofemoral compartment, and contains an impression noting degenerative changes with small suprapatellar effusion. An August 2008 report notes 5/5 strength. The Board finds that the medical evidence does not contain evidence of such symptoms as neurological impairment, incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. In this regard, the October 2006 VA examination report notes that the Veteran had 4/5 strength in his right lower extremity, and indicates that there was no evidence of atrophy. The April 2009 VA examination report shows that the Veteran's right knee had extension to 0 degrees, and flexion to 80 degrees. Repetitive motion increased pain and caused a further 10 degree decrease in the range of motion. This is still in excess of the 30 degrees loss of flexion, or the 15 degree loss of extension, that is required for a 20 percent rating under DCs 5260 and 5261. To the extent that the Veteran reported that he had to quit work as a coal miner in 2003 due to missed days caused by his right knee symptoms, this is not credible. The Veteran has not submitted any objective evidence in support of this assertion, and it is directly contradicted by his reported history in April 2006 VA hospital reports, which show that he stated that he had worked in a coal mine between 1999 and 2002, and that he was in a work-release program "at Kiowa" in 2003 following a prison sentence for a parole violation. See also October 2006 VA examination report; December 2007 VA progress note. In short, the Veteran is already being adequately compensated for pain and any perceived loss of function. In summary, even taking into account the Veteran's complaints, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, neurological impairment or incoordination that are sufficiently severe to warrant an increased rating, and the Board finds that, when the ranges of motion in the right knee are considered together with the evidence of functional loss due to right knee pathology, the evidence does not support a conclusion that the loss of motion in the right knee more nearly approximates the criteria for a rating in excess of 10 percent under either DC 5260 or DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. 2. March 1, 2011 to February 14, 2012 The Veteran underwent a total right knee replacement on December 28, 2009; a temporary total (100 percent) rating is in effect from December 28, 2009 to February 28, 2011. For the period from March 1, 2011 to February 14, 2012, the RO has evaluated the Veteran's right knee disability as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055. Under 38 C.F.R. § 4.71a, DC 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Under 38 C.F.R. § 4.71a, DC 5256 (ankylosis of the knee), a 40 percent rating is warranted for ankylosis in flexion between 10 degrees and 20 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Under 38 C.F.R. § 4.71a, DC 5261 (limitation in extension of the leg), a 40 percent rating is warranted for extension limited to 30 degrees. Under 38 C.F.R. § 4.71a, DC 5262 (impairment of the tibia and fibula), a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace. The Board finds that the claim must be denied. The medical evidence consists solely of VA progress notes, which do not contain any evidence to show that the Veteran's right knee is productive of extension limited to 30 degrees. Furthermore, although the Veteran is shown to wear a brace, there is no evidence of ankylosis of the right knee, or a nonunion of the tibia and fibula, with loose motion, and the criteria for a rating in excess of 30 percent for the right knee under DCs 5256 and 5262 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 30 percent under DC's 5256, 5261, and 5262 are not shown to have been met, and that the claim must be denied. With regard to DC 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca; VAGCOPPREC 9-98. In this case, the medical evidence does not contain findings showing that an increased rating is warranted, based on sufficiently severe symptoms that would support a higher rating on the basis of functional loss due to pain. In summary, the medical evidence is insufficient to show that the Veteran has such symptoms as muscle atrophy, neurological impairment, atrophy, loss of strength, or incoordination attributable to the right knee which are so severe as to warrant an increased rating. Therefore, the Board finds that the evidence is insufficient to show a loss of motion in the right knee together with evidence of functional loss that more nearly approximates the criteria for a 40 percent rating under DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. In addition, given the foregoing findings, the Board finds that the evidence is insufficient to show that the Veteran's disability is productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity. There is insufficient evidence to show that the right knee is productive of severe weakness, and the Board finds that the symptoms are not shown to meet intermediate degrees of residual weakness, pain, or limitation of motion. It follows that the 60 percent rating for is not assignment under the circumstances of this case. Therefore, the criteria for an increased rating under 38 C.F.R. § 4.71a, DC 5055 have not been met. 3. As of February 15, 2012 The Veteran's residuals of a total right knee replacement have been evaluated as 60 percent disabling as of February 15, 2012, under 38 C.F.R. § 4.71a, DC 5055, which evaluates impairment from knee replacement (prosthesis). The Board has considered other potentially applicable diagnostic codes. Schafrath. The 60 percent evaluation assigned for right knee replacement is the maximum evaluation provided for most knee disabilities. See 38 C.F.R. § 4.71a, DC 5003, 5010, 5256-5263 (2012). The only diagnostic code that provides for a higher evaluation of 80 percent contemplates impairment of the femur due to fracture of the shaft or anatomical neck of the femur, with resulting nonunion and loose motion. 38 C.F.R. § 4.71a, DC 5255 (2012). However, the evidence does not demonstrate any femur fracture, nonunion, or loose motion. Thus, an increased evaluation under this diagnostic code is not warranted. Furthermore, a schedular evaluation greater than 60 percent is prohibited by the "amputation rule," found in 38 C.F.R. § 4.68, which prohibits the assignment of a combined rating for disabilities of an extremity higher than the rating for the amputation at the elective level, were amputation to be performed. Amputation at the elective level would be at thigh level, middle or lower thirds. Amputation at that level warrants only a 60 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165. In layman's terms, the Veteran cannot receive a higher rating for his replaced knee than for a leg amputated. Accordingly, a schedular rating in excess of 60 percent for the Veteran's service-connected right knee is not warranted. Since the Veteran is currently evaluated with the highest rating possible under DC 5055 following the assignment of a temporary total rating based on his right knee replacement surgery, the Veteran can only be awarded a rating in excess of 60 percent on an extraschedular basis. However, as discussed infra (in Part I.D.) an extraschedular rating is not warranted. Accordingly, the claim must be denied. 4. Conclusion For the entire time period on appeal, separate ratings under 38 C.F.R. § 4.71a, DC Code 5260 (limitation of flexion) and DC 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). In this case, however, as set forth above, the medical evidence is insufficient to show that the Veteran's right knee flexion is limited to the extent necessary to meet the criteria for a separate compensable rating. 38 C.F.R. § 4.71, Plate II, DC 5260. In this regard, to the extent that it may be argued that the range of motion findings in the June of 2008 VA progress note (extension to 10 degrees) warrant a separate rating for knee extension, this appears to have been no more than a temporary exacerbation without an increase in the underlying condition, as evidence by the increased range of motion found upon VA examination in April 2009. Additionally, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. The VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, the Veteran is rated under Diagnostic Code 5055 for knee replacement, which incorporates the range of symptoms that can affect the knee. As such, the provisions for assigning separate ratings for the knee are no applicable under the circumstances of this case. With regard to the time period prior to the Veteran's knee replacement, the Veteran is competent to report that his knee feels unstable or gives way. However, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Notwithstanding a notation in a November 2007 VA MRI report, medical professionals have consistently found no instability of the right knee. See e.g., VA examination reports; June 2008 VA progress note. As the medical evidence shows that the Veteran does not have any right knee instability, the Board has determined that the evidence is insufficient to show that a separate rating is warranted for instability of the right knee. Given the foregoing, the Board finds that the evidence is insufficient to show recurrent subluxation or lateral instability of the right knee under DC 5257. In making this determination, the Board finds that since DC 5257 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); do not apply. Johnson v. Brown, 9 Vet. App. 7, 9 (1996). Finally, in Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Thus, the Board has also considered whether a separate, compensable rating would be warranted for a scar or scars. As an initial matter, in 2008, the Secretary of the VA amended that portion of the Schedule for Rating Disabilities pertaining to scars. As set forth in the Federal Register, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Here, the Veteran's claim was received at the RO in 2005. Thus, the new regulations are not applicable; all cited diagnostic codes are as in effect prior to October 23, 2008. Under 38 C.F.R. § 4.118, DC 7804, a 10 percent evaluation is warranted for superficial scars that are painful on examination. In this case, the February 2012 knee/leg DBQ, and scar DBQ, both indicate that the Veteran's right knee scar is painful. More specifically, the scar DBQ states that the Veteran had a vertical scar, midline from the distal thigh across the patella to just below the knee that was 23 centimeters (cm.) long. (this report also shows that the Veteran had a nontender scar at the medial aspect of the right knee). Therefore, there is evidence of compensable manifestations of the Veteran's right knee surgical scar. Thus, the assignment of a separate 10 percent evaluation for scarring as a residual of right knee surgery is warranted as of February 15, 2012. There is no evidence to show that the right knee scar was painful on examination prior to this time, see e.g., VA examination reports, dated in October 2006 and April 2009, or that prior to this time it was shown to have been productive of deep scars, scars causing limited motion and covering an area exceeding 6 square inches (39 sq. cm.), superficial scars (without a limitation of motion) with an area or areas of at least 144 square inches (929 sq. cm.), superficial and unstable scars, or a limitation of function. See 38 C.F.R. § 4.118, DC 7801, 7802, 7803, 7805. A rating in excess of 10 percent is not warranted as this is the maximum evaluation assignable under DC 7804, and the loss of function of the knee has already been utilized in the assignment of the ratings under DC 5055. Rating the same manifestations of a disability under different diagnostic codes is precluded. See 38 C.F.R. § 4.14 (2012). There is no evidence to show that this scar is manifested by an area or areas exceeding 12 square inches (77.4 cm. squared), or functional loss. See 38 C.F.R. § 4.118, DC 7801, 7805. B. Cervical Spine In January 1994, the RO granted service connection for herniated disc, C5-C6, with arm numbness, evaluated as 20 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c). In March 2005, the Veteran filed a claim for an increased rating. In July 2005, the RO denied the claim. The Veteran has appealed. The AMC has rated this disability under DCs 5237-5243. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; the additional code is shown after the hyphen). This hyphenated code indicates that the service-connected disability is cervical strain, and it is rated as if the residual condition is intervertebral disc syndrome under DC 5243. Under 38 C.F.R. § 4.71a, DC 5237 (lumbosacral and cervical strain), and DC 5242 (degenerative arthritis of the spine) (see also DC 5003), are rated under the "General Rating Formula for Diseases and Injuries of the Spine." The General Rating Formula provides that a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes states that a 40 percent rating is warranted for IDS: With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. [Note 1]. The Board finds that the evidence is insufficient to show that the criteria for a rating in excess of 20 percent have been met for the cervical spine. Except as discussed below, the only recorded ranges of motion are as follows: flexion to 40 degrees (October 2006), flexion to 20 degrees (February 2012 Disability Benefits Questionnaire). There is no evidence of ankylosis. With regard to intervertebral disc syndrome, a February 2012 Disability Benefits Questionnaire shows that a VA examiner indicated that the Veteran's cervical spine disability had not caused any incapacitating episodes over the past 12 months. There is no other evidence to show that the Veteran has incapacitating episodes to the required degree due to cervical spine intervertebral disc syndrome. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under the General Rating Formula for the cervical spine, and the claim must be denied. In reaching this decision, the Board has considered the findings in a July 2012 VA progress note, which indicate five degrees or less of motion in any plane, however, this appears to have been a mere exacerbation, and not an indication of an increase in the underlying pathology, as evidenced by subsequently increased ranges of motion. See July 2012 VA progress note (flexion to 20 degrees); Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca; VAGCOPPREC 9-98. In this case, the October 2006 VA examination report shows that the Veteran reported having cervical spine pain that was aggravated by walking and standing, and any neck movement. He stated that he took oxycondone and applied heat to treat his symptoms. He complained of daily flare-ups, 12 times per day, lasting from two hours to all day. He denied being placed on bedrest of being hospitalized for his back since his last examination. He had extension to 20 degrees, right lateral bending to 10 degrees, left lateral bending to 25 degrees, right rotation to 45 degrees, and left rotation to 35 degrees; all movements were with pain. There were no muscle spasms. Sensation was decreased to monofilament on the right arm and leg, but not the left arm or leg. Vibratory sensation was decreased on the right, but not the left. Grip strength was between 4/5 and 5/5. Upper extremity strength was 5/5 with shaking. Upper extremity reflexes were 2+. Both biceps measured 28 centimeters. An X-ray was noted to show minimal degenerative disease at C5-C6. The relevant diagnosis was cervical disc disease with residual pain and decreased range of motion. A VA Disability Benefits Questionnaire, dated in February 2012, shows that the Veteran complained of increased neck pain that radiated into the trapezius towards his shoulders. On examination, there was moderate to severe pain on motion. Flexion was to 20 degrees, and extension was to 15 degrees. For both flexion and extension, pain began at 0 degrees. After repetitive testing, flexion was to 20 degrees, and extension was to 15 degrees; there was no additional limitation of motion following repetitive testing. With repetitive testing, and testing against resistance, there was objective evidence of pain, but no further loss of range of motion. The examiner noted that electromyogram (EMG) testing showed no cervical radiculopathy, but that there was sensory neuropathy, which is common seen in the setting of long-term alcohol use, and that the Veteran has a well-documented history of alcohol dependence with several admissions for the same. The physician concluded that the Veteran's peripheral neuropathy was at least as likely as not secondary to alcohol use. The examiner stated that it was not possible to determine the additional functional limitation during flare-ups without resorting to speculation. He explained that the degree or severity of the flare-up varies depending on the causative factor. There was no muscle atrophy. The Veteran's disability impacted his ability to work, specifically, it limited the movement of his head and would prevent any overhead activity, repetitive motion, or prolonged driving. Overall, VA progress notes show a number of treatments for complaints of neck pain. A September 2007 MRI report for the cervical spine contains an impression noting mild disc bulges at the C5-C6, and C6-C7 levels without significant central canal or neural foraminal stenosis. Reports, dated in October 2007, note a reportedly normal MRI of the cervical spine, and that it was likely that no surgical intervention was indicated. A neurosurgical consultation report notes 5/5 strength, intact sensation, normal reflexes, and normal X-rays and MRI. The physician concluded that neurosurgical intervention was not possible, but that physical therapy may be helpful. A July 2008 report notes 5/5 strength in the cervical spine. A November 2010 VA MRI report contains an impression noting mild degenerative disc changes at C5-C6 and C6-C7. An April 2012 report notes that there were no musculoskeletal problems. The medical evidence does not contain evidence of such symptoms as neurological impairment (other than for the right upper extremity, which has been rated separately), incoordination, loss of strength, or any other findings that would support a higher rating on the basis of functional loss due to pain. In this regard, the Veteran is shown to have cervical spine flexion of between 20 and 40 degrees. This is still in excess of the 15 degrees loss of flexion that is required for a 30 percent rating under the General Rating Formula. Repetitive motion is not shown to have caused an additional decrease in the range of motion. In such a case, joint pain alone, and even pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant an increased rating. Mitchell. In short, the Veteran is already being adequately compensated for pain and any perceived loss of function. Even taking into account the complaints of pain, the medical evidence is insufficient to show that the Veteran has such symptoms as atrophy, loss of strength, or neurological impairment or incoordination, such that when the ranges of motion in the cervical spine are considered together with the evidence of functional loss due to cervical spine pathology, the evidence does not support a conclusion that the loss of motion in the cervical spine more nearly approximates the criteria for a rating in excess of 20 percent, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. The Veteran is already being adequately compensated for pain. C. Right Arm Numbness and Weakness In January 1994, the RO granted service connection for herniated disc, C5-C6, with arm numbness, evaluated as 20 percent disabling. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c). In March 2005, the Veteran filed a claim for an increased rating. In July 2005, the RO denied the claim. The Veteran appealed, and in October 2006, the RO granted a separate 20 percent rating for this disability, with an effective date for service connection of March 21, 2005. The Veteran appealed the issue of entitlement to an increased initial evaluation. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has evaluated the Veteran's right arm disability under 38 C.F.R. § 4.124a, DC 8513. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a , DC's 8510 through 8540 (2012). Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. Under DC 8513, a 20 percent evaluation is warranted for mild incomplete paralysis of all radicular groups (bilateral). A 40 percent rating (major) is warranted for moderate incomplete paralysis. Id. Diagnostic Codes 8613 and 8713 address the criteria for evaluating neuritis and neuralgia of all radicular groups, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DC's 8613, 8713 (2012). A VA examination report, dated in October 2006, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of right arm weakness, and that he had pain, numbness, and tingling radiating down his arms to the fingers. He complained that these symptoms recur throughout the day (usually twice per day), and last for several hours. On examination, grip strength was 4/5 to 5/5, and upper extremity strength was 5/5, with shaking. Upper extremity deep tendon reflexes were 2+. Biceps and forearms measured equally, bilaterally. There was no relevant diagnosis. A VA progress note, dated in October 2007, notes that the Veteran's right upper extremity had 4/5 strength, with numbness and tingling radiating through the C5, C6, C7 dermatomes. A January 2008 report notes 3/5 strength on the right, and grossly intact sensation. Findings as to strength are as follows: 3/5 (January 2008), 5/5 (July 2008), 4-/5 (July 2012). The Veteran was shown to have a full range of motion in his upper extremities (August 2007, April and May of 2012), and a "preserved active range of motion" (March 2012). Reflexes were 1+/3+, and 1+/4+ (July 2012). A VA Disability Benefits Questionnaire for the cervical spine, dated in February 2012, shows that the Veteran's right arm was noted to have 4/5 strength in finger flexion and abduction, and 5/5 strength in elbow and wrist flexion and extension. Reflexes in the right upper extremity were 2+. There was constant mild pain, mild paresthesias and/or dythesias, and mild numbness. There was no radiculopathy. A VA Disability Benefits Questionnaire for the peripheral nerves, dated in February 2012, shows that the diagnosis was sensory peripheral neuropathy of the bilateral upper extremities. The Veteran was noted to be right-handed. Elbow and wrist flexion and extension strength was 5/5, grip and pinch (thumb to index finger) strength were 4/5. There was no muscle atrophy. Reflexes in the right upper extremity were 2+. A sensory examination at the right inner and outer forearm was normal. The radial (musculospiral nerve), and ulnar nerve, were normal. The median nerve had mild incomplete paralysis. An EMG (electromyography) was noted to be abnormal, with small or absent sensory nerve action potentials; the findings were suggestive of a peripheral neuropathy. See also February 2012 EMG report. The Veteran's peripheral nerve condition and/or peripheral neuropathy did not affect his ability to work. The examiner stated that the Veteran has a sensory neuropathy of the bilateral upper extremities, and a longstanding history of alcohol use/abuse which has been linked with sensory neuropathy, and that his EMG does not show evidence of radiculopathy. The Board finds that the Veteran's condition is not shown to have been manifested by moderate incomplete paralysis, such that an evaluation of 40 percent for the right upper extremity is warranted under DC 8513. The VA progress notes tend to show that the Veteran has 4/5 strength or greater in his right upper extremity. Overall, the evidence shows that his upper extremity deep tendon reflexes have tended to be 2+, and that there is no muscle atrophy. The February 2012 VA cervical spine DBQ shows that there was constant mild pain, mild paresthesias and/or dythesias, and mild numbness, and that there was no radiculopathy. The February 2012 VA peripheral nerves DBQ shows that a sensory examination at the right inner and outer forearm was normal, and that the radial (musculospiral nerve), and ulnar nerve, were normal. The examiner characterized the Veteran's median nerve as having mild incomplete paralysis. Based on the foregoing, the Board finds that the evidence does not show that the Veteran's right arm weakness and numbness is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 40 percent under DC 8513, and that the preponderance of the evidence is against an increased initial evaluation. The Board also concludes that the evidence does not demonstrate that the Veteran's right upper extremity is shown to have been manifested by moderate incomplete neuritis or neuralgia, such that an increased initial evaluation is warranted under DC 8613 or DC 8713. Specifically, given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation and limitation of range of motion, the Board finds that it is not shown that the Veteran's right arm weakness and numbness has been manifested by moderate incomplete neuritis or neuralgia of all radicular groups, as contemplated by these diagnostic codes. Accordingly, an initial evaluation in excess of 20 percent is not warranted for the Veteran's right arm weakness and numbness under DC's 8513, 8613, or 8713, and the claim must be denied. D. Conclusion In deciding the Veteran's increased rating/initial evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999), and Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities in issue, such that an increased evaluation is warranted. The Board acknowledges that the Veteran is competent to testify as to symptoms associated with his disabilities which are non-medical in nature, however, he is not competent to testify as to the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. When comparing the Veteran's disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected right knee, cervical spine, and right upper extremity disabilities are congruent with the disability picture represented by the disability ratings assigned herein. The criteria for the disability ratings assigned herein more than reasonably describe the Veteran's disability levels and symptomatology. The Veteran is shown to have a right total knee replacement, as well as some decreased strength and dexterity in his cervical spine and right upper extremity. As the Board finds that the Veteran's disability pictures are contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In February 2011, the Veteran was provided an opportunity to set forth his contentions during a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2011 hearing, the AVLJ identified the issues on appeal. Also, information was solicited regarding the severity of the Veteran's disabilities. The testimony did not reflect that there were any outstanding medical records available that would support his claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. In reaching these decisions, the Board has considered the doctrine of reasonable doubt; however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in April 2005 (right knee and cervical spine), and September 2007 (right knee). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). With regard to the claim for an increased initial evaluation for right upper extremity weakness and numbness, this claim was granted sua sponte by the RO in October 2006. In such cases, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491, 493. The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. In December 2011, the Board remanded these claims. The Board's remand directed that all outstanding VA treatment records be obtained for the Veteran. In addition, the Board directed that the Veteran be afforded a VA examination by an examiner with sufficient expertise to determine the nature and extent of all impairments due to his service-connected right knee disability, and cervical spine disability. Additional VA treatment reports, dated up to 2012, were subsequently added to the Veteran's claims file. In February 2012, the Veteran was afforded examinations of his right knee, cervical spine, and peripheral nerves. Concerning these examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VA examination/DBQ reports show that the examiners reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, provided the appropriate findings, and rendered diagnoses that are consistent with the remainder of the evidence of record. To the extent that the VA examiner stated that he was unable to provide an opinion on functional loss during flare-ups without resort to speculation, this determination is accompanied by an adequate explanation. See Jones v. Shinseki, 23 Vet. App. 382 (2010); see also Roberts v. West, 13 Vet. App. 185, 189 (1999) (holding that "the fact that [a] medical opinion was inconclusive ... does not mean that the examination was inadequate."). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to December 28, 2009, a rating in excess of 10 percent for the Veteran's service-connected right knee disability is denied. For the period from March 1, 2011 to February 14, 2012, a rating in excess of 30 percent for the Veteran's service-connected right knee disability is denied. As of February 15, 2012, a rating in excess of 60 percent for the Veteran's service-connected right knee disability is denied. As of February 15, 2012, a rating of 10 percent, and no more, for service-connected right knee scar, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 20 percent for the Veteran's service-connected cervical spine disability is denied. A rating in excess of 20 percent for the Veteran's service-connected right arm numbness and weakness is denied. REMAND The Veteran's June 2009 RO hearing transcript shows that the Veteran testified that he was not able to work due to his service-connected right knee disability. He therefore raised a claim for a total rating on the basis of individual unemployability due to service-connected disability (TDIU). This claim has not yet been adjudicated by the agency of original jurisdiction. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter with respect to the issue of entitlement to TDIU. 2. Adjudicate the issue of entitlement to TDIU. If the determination remains unfavorable to the appellant, he and his representative should be provided with a SSOC that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. The appellant 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 2002 & Supp. 2012). ____________________________________________ CAROLE R. KAMMEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs